If you’re interested in issues of women in prison, this upcoming event at the Sonoma State University Library seems interesting. The program looks great, and includes not only a panel and talks, but also a documentary and a performance.
Sister Helen Prejean to Speak in Walnut Creek
More events of interest: Sister Helen Prejean, author of Dead Man Walking (made into an excellent movie), will be speaking next Monday at the Mount Diablo Unitarian Universalist Church in Walnut Creek. These are exciting times for those interested in the death penalty, as New Mexico abolished capital punishment four days ago, and as other states place moratoria on executions, citing costs. To get a sense of the broader cultural implications of the death penalty, I strongly recommend Austin Sarat’s When the State Kills.
Reentry and Returning to the Community
The last panel, Reentry and Returning to the Community, was a mixture of somber observations on the correctional process and of rays of hope. It started out with Dorsey Nunn, Program Director for Legal Services for Prisoners with Children, who put much of the financial crisis into perspective. The current concern over the national 13 percent employment rate, he said, would be cause for rejoice among the prisoner population; with thousands of formerly incarcerated men and women looking for employment, only a precious few will be able to rebuild their lives. Part of the problem, argued Nunn, is structural in nature; when released inmates are denied basic survival needs, such as jobs that provide medical insurance, the problem is propagated. Even simple, technical things that middle-class citizens would not notice, discriminate and marginalize, such as a “have you ever been convicted?” box on life insurance forms. Much work still needs to be done around discrimination; and the middle-class person’s paranoia when confronted with “someone who looks like me”, said Dorsey, is only half of the picture; released inmates experience a parallel sense of paranoia when asking for houses and jobs. The good news are that formerly incarcerated people are organizing, and questioning much of society’s structure, including their exclusion from the very institutions and enterprises designed to “solve” their “problems”.
A good example of this might be San Francisco’s Safe Communities Reentry Council, about which we heard from Jessica Flintoft. The Council is meant to be a collaboration of formerly incarcerated people with various community figures such as the sheriff’s department, county probation, and human services. In true San Francisco fashion, the idea was kicked off with two councils, one headed by the chief Public Defender and a sympathetic supervisor, the other by the District Attorney and the Sheriff. One of Flintoff’s priorities is combining the two, which requires some compromise regarding their roles and conceptions. The purpose of the Council is to develop local oversight over reentry services and options, which so far have been provided sporadically and on a local level.
Flintoft shared some of the principles and challenges guiding her in her work. First, she mentioned, there is an emphasis on transparency and on allowing everyone to come to meetings and speak up. Second, there have been struggles with her intention to allow parolees to serve (and, as of now, they cannot vote, but they can be council members!). Third, she discussed the need to generate collaboration between the DA and the PD as participants in the process, and to transcend the courtroom adversariness for the purpose of advancing reentry. And, finally, she highlighted the importance of making city services available to people regardless of their offense; this requires educating various segments of the community, who express reluctance to offer housing to drug offenders, services to sex offenders, and the like. Flintoft extended an invitation to seven formerly incarcerated people to join the Council.
The closing speaker of the panel – and the conference – was Professor Gerald Lopez from UCLA, who provided us with sobering reflections on the historical dimensions of criminalization, marginalization, and reentry. Contrary to correctional lore, said Lopez, criminalization and the war on crime are not a product of the 1980s and the Reagan era. The same communities and neighborhood were targeted in many of the same ways; minorities and low-income people were routinely hassled, prosecuted and locked up even in the supposedly more benign days of the 1950s and 1960s. It is also important to remember that rehabilitation programs – what we now call “re-entry” – are also not a new invention.
The transformation in the 1980s, and the worsening of fear-mongering and mass hysteria, operated, said Lopez, in utterly predictable ways. Certain populations suffered disproportionate impact. While there hasn’t been a single “master coordinator” of the war on crime, the system we currently have was ultimately the product of design and choice. Policymakers could predict that the same people who were historically targeted by the criminal justice process would be targeted again; the policies were an utterly racial, and racist, perspective on who was safe, who was not, and what to do with them. Moreover, they reflect an immense indifference to the plight of the communities from which the targeted people came and to which they would eventually return.
Fighting these campaigns of fear and cruelty has been an uphill battle, and in the course of the last few decades activists have encountered situations that seemed imaginary – such as the release of people in NY to random places without an ID. It is, said Lopez, sadistic and stupid to design answers for these problems without involving the people themselves in designing their own fate; they must have a voice in the process, and they must have at least access to information on the available services, let alone some measure of how effective and helpful these services are.
Some of the problems with this sort of activism have to do with our tendency to invent the wheel and make up new words (such as reentry), ironically precisely when we have so little that would count as re-entry. Other issues relate to the bureaucracy, meetings, and talk without action that is often a feature of this work. But, as Lopez said, among the cops, parole agents, correctional officers, lawyers, and academics, one can find truly rebellious people, who will cut through red tape and meaningless words to get stuff done. It is these folks who are the true hope for change, and their energy can and must be harnessed to generate that change.
Dangerousness, Risk, and Release
As the day’s panels progressed, it became quite clear that every step of the correctional process was impacted not only by what happened earlier, but also by what happened later. Parole violations, and parole risks, are enormously important considerations for prison population size; also, the phrase “public safety” had so far remained unexamined. Our panelists for the Dangerousness, Risk, and Release panel were going to help us unpack and question the assumptions and considerations underlying our release policies.
Professor Jonathan Simon started by drawing an intriguing analogy between our risk assessment process for crime and for cancer. Why are we so willing to examine evidence-based, empirically tested risk rates for the latter, while at the same time keeping the real risk levels for the former clouded in a mist of public fear? A brief look at the genealogy of this fear revealed our collective “stranger danger”, generated gradually by Manson and other iconic fear figures, as well as by presidential assassinations. This public fear was generated and perpetuated by government officials of all stripes; a brief look at republican and democrat governors revealed their unified position on issues of public safety. The wall-to-wall opposition to the passage of Prop 5, led by Schwarzenegger and supported by others, was a good demonstration of what Mark Leno had said earlier in the day: no one, regardless of political association, wants to appear soft on crime.
Simon highlighted four important points in respect to our culture of fear. First, he said, risk assessment is a very difficult thing to do. Violence is highly situational, rather than an individual’s pesronal trait. Second, while CDCR asks for increased budget to lock up Level IV inmates, the decision to classify inmates as Level IV goes unexamined, and it may well be that this is yet another example of risk overestimation. Third, we must not forget that the supposedly neutral “risk factors” always carry with them social factors, such as race and class, and by doing so, perpetuate stereotypes and generate more demographic divides; and, finally, mass incarceration itself interacts with the broader problem. The mention of feeble, elderly lifers on breathalyzers as “public risks” denied parole was nothing short of absurd. Instead, suggested Simon, why not direct our public safety concerns toward more urgent, and less stigmatizing, needs, such as training our prisoners to help with the very real public risks posed by disasters such as Katrina? Our labeling of people who helped others during the hurricane as potential looters and rapists is very telling of our tendency to allow moral panics about crime cloud the real sources of concern.
For some, however, objections to release are based on a much more private threat to Safety. Shadia Merukeb, a victim consultant with the Alameda County DA’s office, provided the victims’ perspectives on parole. A great part of the problem for victims, she explained, consists of a lack of familiarity with a difficult system, which does not conform to what victims expect based on their crime-TV experiences. Long before the passage of Prop 9, Alameda County provided rights to victims, but without assistance these often went unutilized. The challenges a victim faces in terms of presence in parole hearings range from simple issues of transportation to far away prisons (fees, schedules, and child care!) to issues of fear and concern; often, the victim has to encounter the offender at rather close range, or wait with the offender’s family in the waiting room for the parole hearing. Under these circumstances, the victim advocates fill in the gaps for DAs and parole agents who are unable to provide them with the unique assistance that they require.
The parolees’ perspective was provided by Robin Rederford, community liaison for Legal Services for Prisoners with Children. The problem with release, explained Rederford, lies in releasing people completely unprepared for life on the outside, and with the same substance abuse and unemployability issues they went into prison with in the first place. The return home becomes a frightening prospect when one does not have a supportive family outside; having been humiliated and dehumanized, one has to rebuild one’s life with precious little in the way of resources. Some housing programs actually become unavailable to those with criminal convictions. The concern with public safety, said Rederford, might be greatly alleviated if people were offered services and opportunities for employment which would preclude them from parole violations.
Finally, we heard the CDCR’s perspective on parole reform from Evelyn Lara-Lowe, Deputy Regional Administrator for Parole. She assured us (and I believe her!) that the CDCR has no interest in bringing people back into prison. The issue of general parole is a legal given, which CDCR has to work with; she was willing to concede that there are people on parole who do not need to be under supervision. Ironically, those are the people who actually complete parole without violations. The problem is, said Lara-Lowe, lack of resources. Parole agents, and professional staff, are extremely busy and overloaded; support needs to come from the community, which is often inhospitable to formerly incarcerated people. Also, it is problematic to provide the same level of services in remote places with a relatively small parolee population.
The questions from the audience were absolutely fantastic. We got to discuss parole caseload, as well as to question the link between victimhood and punitiveness. One commentator, a psychiatrist for CDCR, said she couldn’t think of a better way to make people dangerousness and unsafe than to house them in a CDCR prison.
Restorative Justice and Sentencing
(this post by Keith Ogden)
This panel, chaired by Hastings Professor Kate Bloch, brought to light several different models of restorative justice in practice in California today. A common theme in this morning’s panel was, “What are we not addressing in our traditional approach to criminal justice system that causes (or doesn’t mitigate) high recidivism rates?”
Professor Bloch opened up the panel with introductions and a few remarks about restorative justice. She noted that restorative justice is an ancient model for resolving issues of crime and harm in communities. She highlighted several features common to the various iterations of restorative justice practice in world today, including offender responsibility/empowerment and creation of understanding and healing between victims and offenders. She framed the discussion by introducing the general concepts of Victim-Offender Mediation (VOM) and noting that VOM is used in some settings as a replacement for incarceration and sometimes, in various forms, as a supplement to incarceration.
Sunny Schwartz, Director of the San Francisco Sheriff’s Department’s Resolve to Stop the Violence Project (RSVP), shared reflections on her groundbreaking work with us. She reminded us that we’ve been implementing some form of criminal justice system in our state for 150 years without effectively including criminals, prison staff and others in the conversation about the purposes and outcomes of incarceration. She challenged us to think about who benefits from the system as it is.
Working within the system for over 25 years, Sunny has witnessed corrections fail the men and women who spend time in prison over and over again. She has seen three generations of family members in prison at the same time. She has seen recidivism persist at consistently high rates. She decided to do something.
In 1990, Sunny initiated programs to bring education and pro-social living (via open dormitories) to a prison drug program for women in San Francisco. However, recidivism remained high. In the 1990s she stumbled across restorative justice. Inspired by the emphasis on accountability, community involvement, and the underlying premise that crime hurts everyone, she told her boss, Sheriff Michael Hennessey, “we’ve got to start this” in our prisons. She did, and the RSVP program took flight.
Sunny’s greatest professional joy is her work with RSVP. The program takes 60 men who’ve been involved in violent crimes and who would traditionally be locked up in guarded prison cells, and places them in a dormitory setting with counselors. It brings victims who have suffered violent acts to share their stories with violent offenders. Sunny showed a short and powerful video depicting the program in action. One victim shared that “the violence does not end when the act is over.” An offender responded by saying that hearing such stories helped him become more aware of what it’s like to be on the other side. The video resonated with many audience members’ sense – the sense that drives Sunny – that inmates, even the many of the most violent inmates, can change for the better. An evaluation of the RSVP program by a Harvard psychiatrist has demonstrated that for participants who spend at least four months in the program, violent re-arrests drop by 80%.
Marissa Wertheimer, an attorney mediator at Marin Mediation Services and coordinator of their Victim-Offender Restorative Justice Program, shared her journey from social justice and children’s advocacy to restorative justice work.
Marissa raised the important question: “What do we as a community want to do when harm occurs?” The traditional answer is that we outsource our response to crime and harm to others – the police, the courts, the criminal justice system. Restorative justice challenges us to think well beyond rehabilitation and towards empowerment, healing and the responsibility of the community.
In her work with juvenile offenders, Marissa noted that follow-up surveys report 95% satisfaction with the Victim-Offender Mediation process. One might imagine that neither victims nor offenders would report such a high rate of satisfaction with the traditional criminal justice system.
Marissa’s description of restorative justice circles was fascinating. She first learned about the process a few years ago, and viewed it instantly as a means to improve upon traditional Victim-Offender Mediation. The restorative justice circle process involves three steps. (1) “Pre-circle.” The juvenile offenders and the victims have the opportunity to discuss who they feel needs to be in the circle and what they hope to achieve by participating in the circle. They also have an opportunity to opt out if they do not want to participate. (2) “Circle.” Victims and offenders meet in a mediated setting to attempt to reach a mutual understanding and develop a plan of action. Marissa emphasized that it is critical in this step to nail down specifics in order to be able to hold all involved accountable. (3) “Post-circle.” Follow-up. Is the plan being implemented? If not, why not, and what can be done to fix it?
Audience members brought up several questions and concerns. Is it possible for a criminal justice to utilize restorative justice to the exclusion of incarceration? Both panelists commented that some inmates will not respond to their programs and incarceration is necessary. Marissa noted that in New Zealand restorative justice is always the first option in addressing a crime and its attendant harm to the victim, the offender and the community. If restorative justice fails, then the traditional retributive system is invoked. Sunny shared that there all prisons should have programs like RSVP.
The question of whether restorative justice can work for violent offenders was raised. Sunny designed her RSVP program to offer hope for the most egregious offenders. Marissa noted that she is seeing more and more success with violent offenders.
Time was short and some questions were either not raised or not fully answered. For example, can restorative justice circles be used successfully for adult inmate populations? If restorative justice is supposed to be about making victim, offender and community whole, what role is/should the community be playing? How should studies be designed and implemented to assess the success and promise of restorative justice initiatives? Do we want to be “tough” on crime, or “smart” on crime? Marissa noted that the public’s concern for public safety will drive our choices about what system we put in place to address crime. That begs the question, “Does restorative justice meet the goal of increasing public safety?” Our panelists made a strong case that it does. The evolving practices within the realm of restorative justice offer hope that we can be smarter in how we address crime and harm in our communities by creating opportunities for healing and empowerment, and by reducing recidivism.
Special Populations in Prison
One of the often hidden aspects of corrections are populations that do not conform to the public image of the American male offender. Our next panel, on special populations in prison, was designed to draw attention to these underserved populations and the special problems they face during and after incarceration.
The first speakers, Miss Major and Alexander Lee of the TGI Justice Project, spoke to the plight of transgendered prisoners. This plight is best understood through the general background provided by Miss Major on discrimination against the trans population. As she pointed out, the lack of opportunity to exist in a “normal” fashion, the rampant discrimination and ousting from schools, training, and workplaces, sometimes leads trans people to criminal activity. Another aspect of the etiology of trans incarceration is the criminalization of broad areas in trans people’s lives (incidentally: last year Hastings held a Transposium, which provided more background on transgender issues, and whose program can be found here). Lee expanded on the prison situation in particular: the assignation of prisoners to male and female institutions is done on the basis of genitalia, which leads many unoperated trans people to institutions that do not match their gender identity, and produces horrifying phenomena, ranging from rampant verbal harrassment to sexual assault. Lee also mentioned a few cases of what he called “sexual assault by proxy”, in which clients reported having been sent to problematic cells as fodder for violent, aggressive inmates, and being told by guards about this express purpose. The TGI justice project faces immense challenges in organizing prisoners, which it overcomes by producing a newsletter; there is a ray of hope, which lies in the inmates’ acquired high level of legal literacy and their awareness of their rights.
Our next speaker, Dr. Barbara Bloom of Sonoma State University, discussed the issue of women prisoners. The demographics of this population, which constituted 7% of the entire encarcerated population and 12% of the parolee population in 2007, differ from those of males in several important ways. Only about 30% of women are imprisoned for violent offenses; the vast majority are property and drug offenders. In terms of risk, less than 10% of them are considered Level IV prisoners, and almost 70% are Levels I and II. Most of them are in prison for parole violations. This led Bloom to ask whether this large low-risk population would need to be in prison at all, and would not be better served in a scheme of community-based corrections. The concern is particularly true in light of the fact that women prisoners are disporportionately women of color, poor, unemployed, and many of them are mothers of small children, survivors of sexual abuse, and with serious histories of substance abuse.
A big step in improving correctional policies for women was a 2004 report from the Little Hoover Foundation titled Breaking the Barriers for Women on Parole. The report, which recognized the lack of gender responsiveness in supervision, called for important changes in assessment and case management. Some of the highlights of the report, which later became official CDCR goals, included creating a comprehensive case management plan, creating alternatives to the overreliance on mega-prisons for women, and providing a continuum of housing and service options for transfering women seamlessly into the community. Some of these have been implemented: a training curriculum has been created, a special risk-and-needs assessment tool is in use, and some gender-responsive programs are in existence. However, women are still largely held in overcrowded facilities with no comprehensive continuum of care. There is much to be done particularly in the realm of alternative housing facilities.
Finally, Angie Junck of the Immigrant Legal Resource Center allowed us a peek into the hidden and disturbing world of correctional policies directed at foreign-born inmates. As it turns out, California prisons contain 30 percent of all noncitizen inmates in state prisons nationwide. Contrary to what some of us may have thought, many of these folks are not “illegal” or “undocumented”, but rather lawful permanent residents, or even naturalized citizens. Most of them come from Mexico, but there are many who hail from Central America and Asia.
The fate of these inmates is quite interesting. While they serve their sentence, the CDCR alerts immigration officials to the identity of anyone they believe to be a noncitizen; their mechanism for doing so is incredibly crude and relies on people’s last names. Immigration and customs enforcement officials then place a “hold” on the inmate, that is, a request that the prison or jail hold the pesron after their scheduled release time in order for immigration to assume custody and initiate deportation proceedings. At that point, they are transferred to the center for deportation, where the conditions are considerably worse than in California prisons. The hold itself has devastating effects on one’s prison experience: prisoners on hold are subject to higher security classification; according to data collected in 2000, their prison terms are, on average, 10 percent longer than those of comparable inmates. They cannot be paroled or released, are disqualified from rehabilitative prison programs, and are often located in a facility far away from home, presumably under the assumption that one does not have family and therefore does not need to be close to visitors. Information collected by the California Coalition regarding women immigrants revealed big difficulties in obtaining medical care due to language issues, greatly exacerbated by the fact that medical forms are all in English.
The suggested – and accepted – state policies regarding these inmates are characterized by anti-immigrant sentiments; immigrant inmates are seen as a bureaucratic inconvenience best dealt with by deportation and on federal dime. Parole is not revoked for illegal presence in the United States; instead, the deportees are transferred to the Federal system where they will serve ten times the time they would serve for the parole violation.
Our exposure to these issues means that we can no longer use the excuse that the populations are small and unseen.
Judge Karlton’s Luncheon Address
(image courtesy law.com)
It was our great pleasure to have Judge Lawrence Karlton as our luncheon speaker. Naturally, Judge Karlton could not directly comment on the ongoing Plata/Coleman cases; he did, however, discuss the principles underlying them and some of the broader concerns surrounding them.
Judge Karlton opened with a discussion of the long nature of the problem; the Coleman case hails from Governor Wilson’s days, and the Valdivia case was originally filed against Governor Davis. In hindsight, the expectation that a 1995 determination that the state had violated its inmates’ Eighth Amendment rights would yield immediate results seems rather naive; there is still much work to be done before the system can be brought into compliance with constitutional standards. Fourteen years later, there is still no bed plan for mentally ill people; there is no systematic program for evaluating inmates; treatment programs are few, and sorely lacking sufficiently trained administrators; the confidential maintenance of medical records is far from perfect; and there is no system for identifying suicide risks. Much of the plight of the medical system can be traced back to the massive closing of mental institutions during the Reagan era; so far, no CA institution can be said to comply with constitutional standards. Not much progress has been made with parole revocation reform, either.
The question then becomes why the CDCR does not rectify the situation to rid itself from the federal judiciary; the answers are complex and subtle. One possible answer provided by Judge Karlton is that prison administration is a large bureaucracy, and in such institutions, existing rules have a tendency to perpetuate the status quo and discourage change. There is the additional complicity of other professional systems, such as the psychiatric system; it is difficult to hire professionals to work in prisons located in remote places. As Judge Karlton reminded us, we do not have to have an evil disposition to end up with a dysfunctional system. There is also the issue of lobbying power; prisoners and their families do not represent a real constituency.
As to the broader issue of the court’s role in reforming prisons, Judge Karlton had interesting things to say. Federal judges do not stand for reelection, they present a hope for change. However, law and courts, he argued, are bludgeons; what is needed for these problems is a scalpel. Federal courts can only intervene when state standards fall beneath the Federal constitution. What is desperately needed is a change in culture within the state, and attention to the parts that are hidden from state citizens; those which, according to Dostoyevsky, are the measuring rods for our true level of civilization.
Neuroscience, Treatment, and Drug Courts
After the morning panels, it seemed that reforming our sentencing scheme was almost as impossible as being in three places at once, which is why I was only able to attend one of the concurrent panels on alternative sentencing. Dr. Emily Murphy, a behavioral neuroscientist working at Stanford, provided us with some fascinating information on the potential of neuroscience in rehabilitation in general, and in drug addiction situations in particular.
One of the problems with the emerging trend of neurolaw, which is otherwise a fascinating and promising field, is the tendency of some professionals to aggrandize its promise and advocate it as a cure-all, magic bullet for social ills. Murphy strongly advised against such simplistic perspectives, and her talk was an excellent example of nuanced, intelligent, sane discourse on the promise and limitations of science. Having briefly examined California’s history with brain-altering therapies, in particular the controversial UCLA Violence Project of the 1970s, Murphy turned to dicussing three avenues in which neuroscience could be helpful in criminal justice enterprises.
The first of these, prediction, focuses on the ability to foresee who might recidivate or benefit from a certain kind of treatment. This is a goal we are, at this point in time, far from achieving; there is no such thing as a single “crime spot” or a “violence spot” in the brain we can identify. One thing some scientists have done is focus on the category of psychopathy; psychopaths, sophisticated and manipulative, are highly overrepresented in the incarcerated population. Current diagnostic tools are not very helpful for screening purposes, since they consist of lengthy interviews by extensively trained people; however, Dr. Kent Kiehl has done some research on this on New Mexico inmates using a portable MRI scanner and is optimistic about its predictive potential.* Another issue is the possibility of predicting dangerousness. The Macarthur foundation has devleoped some multifactorial quantitative measures which, albeit imperfect, might have some predictive value. The key would be to obtain brain mapping, follow up on the inmates after their release from prison to see recidivism patterns, and then use the correlation to offer predictions. It should be remembered, however, that typical analysis of MRI relies heavily on statistical correlations, rather than on identifying a single spot on the brain, and therefore cannot be dispositive. It is also quite difficult to predict whether a certain type of treatment would be suitable for a certain offender; pharmacological treatment is akin to a sledgehammer in that it impacts the entire brain, and therefore often has complicated side effects.
Some treatment options are also being explored. In drug addiction cases, this mostly consists of substitution (replacement of the drug with another drug) and/or direct antagonism (drugs which suppress the craving by creating adverse consequences). Going through the existing substitutes – the well-known methadone and several others – was fascinating; naturally, treatment efficacy is seriously impacted by compliance. Also, some of the antagonizing drugs produce other bad reactions that might, ironically, exacerbate drug use.
Some more extreme treatment measures include psychosurgery and brain stimulation, which share an ugly, frightening history. However, brain stimulation has been found to be effective for treating Parkinson’s disease, and may also be valuable for various addictive conditions. The problem is finding dependable studies, based on ethical research, and published in reputable journals, that would confirm the efficacy of treatment.
The mixed results of treatment led Murphy to advocate a research focus on prevention. Several avenues were explored, such as the possibility of vaccination against addiction (which raises compliance issues) and the potential for actual erasure of drug-related memories, thus eliminating the positive associations to drug use. The problem is, as some audience members pointed out, that drug use becomes such a pervasive aspect of a person’s whole life, that a great many things and situations may be associations.
Murphy closed her talk by emphasizing the fact that neuroscience cannot be, in itself, a magic answer to drug prevention, and that holistic, environmental factors should also be taken into account. The perfect environment for considering all these factors is a drug court, which could create the sort of support system that would enhance the efficacy of any treatment chosen. She also reminded us of the need to be subtle and sophisticated about raising ethical questions – not accepting things at face value, but also not ruling them out with a knee-jerk reaction.
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* props to Nadja Habinek for the link.
Sentencing Reform in California
One thing that became crystal clear on the Thursday opening panel was the lack of coordination between the different steps of the correctional process, starting with sentencing; but the deep problems, and the immense challenges in fixing them, were fully introduced only on Friday morning on the sentencing panel.
The panel was opened by Judge Tricia Bigelow, Associate Justice at the 2nd District Court of Appeal, who teaches sentencing to judges, and who used the words “labyrinth” and “byzantine” when describing the CA sentencing scheme (citing a colleague who compared our sentencing laws to bureaucratic memoranda and toy assembly instructions!). Since 1977, Judge Bigelow explained, the basic structure for single-count felony sentencing consists of choosing a “base term”, and then adding conduct and status enhancements. The penal code provides “triads” for each particular crime (for example: 2, 3, or 5 years); after Cunningham v. CA, a temporary legislative fix allows the judges to select one term out of the triad based on a set of factors from a non-exclusive list. After adding enhancements – additional prison time due to the nature of the crime (injury, gun, excessive taking in a theft) or to the circumstances of the criminal (previous convictions) – the judge can review a variety of statutory reasons for mitigation or aggravation. This is a fact-specifc process, which is difficult to systematize. The judge must also state reasons for selecting the base term out of the triad.
The picture becomes murkier, though, because CA law is a patchwork of sentencing initiatives that create special sentencing schemes for special cases. Not only do we have a “ghetto” of indeterminate sentencing for lifers, but we also have three strike laws, which, incidentally, create changes in sentencing for two-strikers as well (double the punishment); special sentencing schemes for sex offenders, gun offenders, gang offenders, and others. Judge Bigelow amused/horrified/bewildered us with some of the example cases she gives to judges when she teaches sentencing; it is truly a difficult maze and, as she reports, none of them got one of the examples right. She mentioned the need for a unified system that produces predictable results.
How must we proceed in producing a unified system? Kara Dansky, Executive Director of the Stanford Criminal Justice Center, strongly advocated for a sentencing commission. She started by highlighting two themes in CA sentencing: the unique rigidity and complexity of our sentencing system, and the shift in discretion from the hands of judges and correctional officials to legislators and prosecutors. What we have now is remarkably different from what the original enactors of the Determinate Sentencing Scheme had in mind in 1976; the triads, which were supposed to simplify matters and provide certainty, ended up being part of a patchwork, and are surrounded by hundreds of enhancements. Every single time a sentencing commission has been proposed – and there have been 11 bills so far – it has died, been vetoed, or stalled. There is now a new bill for a sentencing commission before the Assembly, based on Tentative Draft #1 (which, despite its tentative name, is the last word from the people who brought you the Model Penal Code).
A sentencing commission would have several purposes. It would be expected to develop sentencing guidelines (with an eye toward creating uniformity while still allowing judges room to individualize the sentence); collaborate with judges (who should be more involved than they are now); provide information and generate knowledge from the entire system (there is no single nonpartisan forum for policy, nor is there any communication between the different silos maintaining datasets on CA sentences); explain the logic behind sentencing policy (a duty from which our lawmakers are exempt); and ensure that all of this happens on a permanent and ongoing basis.
Dansky also tackled several of the arguments against sentencing commissions, arguing that they were based on misconceptions of the institution and the logic behind it. Two worth mentioning were the concern that commissions would be undemocratic, when, in fact, they would be a transparent governmental agency, and the concern that voter initiatives would render them useless, which may be the case for some, but not all, sentencing situations.
It was a pleasant surprise to find out that not only judges and policymakers had concerns with sentencing; Michael Jimenez, President of CCPOA, showed us that correctional officers and guards have vested interest in what happens to their inmates before they arrive in prison. In fact, Jimenez argued, the sentencing scheme is so bad that he could not imagine anything worse. The CCPOA has been pushing for a sentencing commission as well, but very disheartened with the political process around it. It all revolves, said Jimenez, around money; there is no political fix for the sentencing problem as long as our policy calculations are influenced by short term, year-to-year tactics.
The politics of sentencing reform were furtherly driven home by State Senator Mark Leno, who shared with us the sobering realities of sentencing politics. California, said Leno, now spends 11 percent of its budget on corrections – that is, more than it spends on higher education, and obtains abysmal results. We have twice the national recidivism rate and half the national parole completion rate. 70% of the inmates come out of prison functionally illiterate; 70% face serious alcohol and drug problems; 60% will be homeless and unemployable. We are the only state that has both determinate sentencing and parole – three years of it, irrespective of the crime – and no intermediate sanctions. As prison population ages, the costs per prisoner rise; they double for inmates over 50, and triple for inmates over 60.
Leno told us of several attempts to amend CA laws and how they were fought – unfairly and inaccurately – by aggressive lobbyists using fear tactics. An attempt to amend the three strikes law a few years ago, to require that the third strike be a violent offense, seemed to make sense to voters – until the governor had a wealthy sponsor flood the media with statements on the potential to release dangerous rapists and murderers, information left out of the brochure because of its inaccurate, misleading nature. Another attempt to reform the system by allowing people to exit parole after 12 months – which would have saved 70 million dollars, which would then be directed into rehabilitation programs in prison – was killed by a floor alert saying that the bill would release thousands of rapists and murderers. Immediately after the bill was killed, Leno got the following message from the lobbyists: “we apologize for the inaccuracies in our floor alert”.
Leno highlighted that the fear tactics were not a republican problem. Neither republican nor democrat lawmakers want to appear soft on crime at any cost. Under the circumstances, and given the fear of elected officials, a sentencing commission is necessary.
Litigation over Medical Services in Prison
Our next panel, chaired by my terrific colleague Aaron Rappaport, highlighted one of the hottest issues on the correctional agenda today: the issue of litigation over medical services.
Don Specter, Director of the Prison Law Office, opened the panel by telling us some of the realities of prison litigation. The Prison Law Office has been litigating prison health care in CA for three decades, and with the exception of the first trial, they have won every single case by judgment or consent by proving Eighth Amendment violations, which are extremely difficult to prove. Despite these victories, the conditions persist. In the latest chapter, the courts were motivated to make the Plata/Coleman tentative ruling in light of truly alarming data (provided by the Receiver’s office) on the standards of care, such as the shockingly high avoidable death rates in prison. Why did such conditions persist? Not only does overcrowding prevent the system from reaching acceptable standards of care, but the State is not committed, in the deep sense of the word, to the provision of medical treatment to inmates. The system focuses on the custodial aspects of its function; the medical services are an add-on, an afterthought, which the system is not designed, and unmotivated, to cope with, especially in cases of exigencies. Courts are rather poor institutions when it comes to solving such problems with injunctive relief, and are often dismayed at the State’s noncompliance, to no avail. The current move to block the Receivership, said Specter, is one such example. Instead, said Specter, the priorities should be as follows: a reduction of prison population to manageable levels (104,000 prisoners); proper classification of prisoners; and providing the Receiver with proper resources to do his job.
The next speaker, Lori Kohler from the Department of Family and Community Medicine at UCSF, reminded us of an important value: compassion. Prison is an invisible city, and as a society we fail to accept its existence and needs, and simply assume that people just “go away”. But this “city” in particular poses real challenges to medical staff: not only are minorities and poor people overrepresented – which raises questions of medical care prior to entering prison – but also, prison creates some of the most complex cases medical professionals have to deal with. Kohler spoke of the “culture clash” for medical professionals in prison: the doctors walk in with compassion and care, but prison environment constantly reminds one why people are there. There are plenty of opportunities to connect with the compassion of custodians and work together, since the guards themselves have vested interest in the provision of proper medical care; however, the need for safety, and system exigencies, complicate this. Safety rules (such as the inability to transfer people to appointments in the fog, or if someone lost a pair of scissors) complicate the provision of services. Also, the incredible low-tech environment problematizes the ability to take care of complicated medical situations such as HIV, Hepatitis C, and chronic pain. Another challenge is the hiring of proper staff; financial revenues are not enough to guarantee quality and care. Kohler reports having witnessed some truly horrific care, not just in the realm of passivity and neglect. She highlighted the importance of generating a culture shift within the institution by modeling compassion and care.
Clark Kelso, the Federal Receiver for the medical system, spoke of the health system as a symptom of the broader problems in prison: a prime example of insufficient resources to care for an exceedingly large number of prisoners, as well as bad allocation of the resources we already have. The receivership – a court-designated instrument to remedy the situation – is only one solution out of the four class actions dealing with medical, mental, and dental care, as well as with violations of the Americans with Disabilities Act. Part of the receiver’s job is to coordinate with the institutions designed to solve the other pieces of the puzzle.
Since the Receiver cannot change sentencing policies in California, his role in that respect is limited to providing technical information and advice to policymakers, such as the possible impact of sentencing policies on prison population. His primary responsibility, though, is to provide care for whatever population the state decides to incarcerate. In that respect, he focuses on providing mroe access to care, a higher quality of service, more staff, and construction suited to house these needs. Despite the fierce battles with the State, the State and the Receivership actually agree on most of these.
One important point made by Kelso had to do with the need to invest more money as an initial cost, which will go down in time. For example, in order to use telemedicine in prison, network lines need to established, which is very costly (150,000,000) because of the distant locations of the prisons.
Kelso is able to marshal data to assess how much progress has been made, and is pleased to see some important improvements. 85% of medical appointments are successfully made. Staffing is increasing. The challenges in making faster progress have to do with the need to play “catch-up” with thirty-five years of a failure to invest in the medical services, as well as from the need to make the medical services applicable in a system that has custodial and security needs.
Finally, Joyce Hayhoe, Legislation Assistant Secretary at CDCR discussed some of the recent improvements the Department made. Reminding us of the situation prior to the Department’s reorganization in 2003, she highlighted the punitive aspect of sentencing (ratcheting up sentences as a response to punitive public sentiments) as well as the lack of attention to rehabilitation. The recent Plata/Coleman litigation has impacted the CDCR quite deeply. First, the Receiver has managed to greatly improve health care for inmates (we were all invited to San Quentin to see for ourselves; we think we’ll take the CDCR’s invitation seriously!); and second, the three-judge panel decision requires a three-pronged approach to the overcrowding situation, which will include building more capacity, sentencing reform, and rehabilitation programs. She argued that the population is currently at a three-year low, and that the number of “bad beds” in gyms and cafeterias has been decreased by 7,000.