More From Jerry: Federal Prison Oversight a Waste of Money?

Photo credit Randall Benton for the Sac Bee.

After Governor Brown’s public comments about attorney’s fees for inmate rights’ litigators – on which we had plenty to say here and on The Recorder – he’s back to it this morning. The Sac Bee reports:

“During the life of these lawsuits, the prison health care budget has gone from $700 million to $2 billion,” Brown said in an interview with The Bee, his first on the issue since the state filed court documents in January seeking to regain control of its prisons. 

“That money is coming out of the university, it’s coming out of child care. It’s a situation you wouldn’t dream anyone would want.” 

The governor’s comments came as lawyers prepare for a battle in Sacramento federal court later this month over whether the state is providing a constitutional level of mental health and medical care for inmates. Oral arguments are scheduled for March 27 on California’s motion to terminate oversight of mental health care by U.S. District Judge Lawrence K. Karlton. 

Another motion by the state, also filed in January, seeks to vacate or modify an order by a specially convened three-judge court to reduce inmate population. Oral arguments on that motion have not yet been scheduled. 

Really, Jerry? Really? You reap what you sow. Why is the prison health care budget so costly? It’s true that mistreating and ignoring people’s medical plight is cheaper than actually treating them, but perhaps if treating them is so expensive then one should have considered whether so many of them should have been in prison in the first place. And whose fault is it that prison expenditures are higher than what we spend on education and child care? Complaining about this given that the government is the culprit is absurd, offensive, and inflammatory.

Book Review: Prison Profiteers, Edited by Tara Herivel and Paul Wright

Many books and articles decrying mass imprisonment use the term “prison industrial complex”, and many of us know that it refers to the financial aspects of incarcerating a population of immense scale. Many of us also know about the for profit business of private prisons and its many ills. But few are privy to the nitty gritty aspects of the prison industry.

The edited collection Prison Profiteers: Who Makes Money from Mass Incarceration fills this gap with a distressing collection of snapshots of the prison industry. Herivel and Wright did an excellent job of picking authors with intimate knowledge of the crevices of the financial machine behind mass incarceration, and the essays illuminate aspects that, even to those of us who study prisons, often remain unseen.

The essays in the first part of the book, The Political Economy of Prisons, provide a general background to prison finance, explicating (in Kevin Pranis’ essay) the mechanism of bond finance and the collaboration between banks and local governments that leads to opaque, disturbing financial deals that remain hidden from, and thus uncriticized by, the public. Jennifer Gonnerman’s discussion of “million dollar blocks,” that is, neighborhood blocks the incarceration of whose residents costs the nation untold amounts of money, calls for a different distribution of funds – to invest them in the neighborhoods that yield prison population in the first place, rather than in the distant prison. The distance between prisons and the communities of origin of inmates is illuminated in Gary Hunter and Peter Wagner’s discussion of the impact of prisons on the census, and the detrimental effect that a a large population of non-voting, non-deciding citizens has on the democratic process and on local government funding. Clayton Mosher et al provide data that refutes the assumption that cities that agree to build prisons in their midst fare better economically. And Paul Wright discusses the harm of glorifying prisons in popular culture.

The second part of the book, The Private Prison Industry, discusses a better known part of the problem – private prison companies. But the essays do a great job at exposing the mechanisms through which these companies make money and lobby for punitive legislation and policy. Having just read in the paper that a university stadium in Florida is destined to bear the name of a private prison company, GEO, these essays are even more poignant. Ian Urbina’s essay on the prevalence of prison labor, and the multiple ways in which it destroys the larger labor market, is particularly notable.

The third part of the book, Making Out Like Bandits, is a series of ground-level exposes on different aspects of the for-profit industry: The deceitful marketing techniques of tasers (by Anne-Marie Cusac), the horrific abuse and neglectful safety measures taken by private prison transportation companies (by Alex Friedmann, the exorbitant prices of telephone calls and their detrimental ostracizing impact on inmates and their families (by Steven Jackson), the proliferation of high-tech gear and workshops for prison staff (by Jennifer Gonnerman), and the horrors of privatized prisons for youth (by Tara Herivel). But the most devastating essays are by Will Hylton and Paul von Zielbauer, which dissect the private health care providers. Here in CA, the standards exposed in Plata and Coleman might lead one to think that no one can provide worst health care than the states. These essays offer sobering evidence to the contrary, and the multiple examples of medical neglect and indifference are truly heartbreaking.

The collection does not offer high-level analysis of the meaning of the incarceration industry. For that, one must turn to the many big-picture works already out and available. Instead, it provides much-needed foci on the many aspects in which privatization permeates every possible aspect of incarceration. The essays are full of examples and written in an easy-to-read journalistic style. I highly recommend educating yourself not only about your tax money’s role in this, but about the many businesses that benefit from this somber enterprise.

What’s Cheaper: Litigating or Realigning?

Today brings with it an interesting financial gripe: Governor Brown’s concern with the money made by private law firms representing inmates in prison conditions litigation. ABC News Report:

A tally by The Associated Press, compiled from three state agencies, shows California taxpayers have spent $182 million for inmates’ attorneys and court-appointed authorities over the past 15 years. The payments cover a dozen lawsuits filed over the treatment of state prisoners, parolees and incarcerated juveniles, some of which have been settled.

The total exceeds $200 million when the state’s own legal costs are added.

While the amounts are a blip on California’s budget, they provide a continuous income stream for the private attorneys and experts involved in the ongoing litigation. And that is the point Brown is trying to make.

The AP sought the tally after the Democratic governor began using court filings and public appearances to call for an end to two major lawsuits that have forced the state to spend billions of dollars improving its medical and mental health care for prison inmates. Brown says the complaints are expensive, frivolous and motivated by attorneys’ own financial interest.

“They don’t want to go away,” he said last month, standing behind a stack of court documents. “I mean, the name of the game here is, ‘Come to Sacramento and get your little piece of the pie.'”
Brown says that, thanks to recent overhauls, California now offers inmates the best medical and mental health care of any prison system in the nation.

The response from Prison Law Office:

“It’s ridiculous for the governor to merely characterize these cases as being about money, when in fact these cases have been the only impetus in the last 20 years for reducing the prison population and improving conditions,” said Donald Specter, director of the nonprofit Prison Law Office in Berkeley, which has won several major cases against the state.

And from Rosen, Bien, Galvan and Grunfeld:

Michael Bien, the lead attorney representing the welfare of mentally ill inmates in one of the major class-action lawsuits, said Brown is wasting more of the state’s money on a legal fight he has little hope of winning. Moreover, Bien said, inmates’ attorneys expect the court battle will reveal additional lapses in inmate care that will cost the state even more money to fix.

“He’s litigating with your money and my money,” said Bien, of the San Francisco law firm Rosen Bien Galvan and Grunfeld, which is among the law firms that have been paid $19 million by the state in the inmate mental health lawsuit.

He said Brown and the state would be better off complying with a prison population cap supported by the U.S. Supreme Court and by working with Lopes to reduce inmate suicides and improve mental health treatment.

“It’s a distraction from the primary issue here, which is, ‘Why is the state still running unconstitutional prisons where prisoners are dying unnecessarily?'” Bien said. “The easiest way to stop this process is to fix the problem.”

The Washington Post offers the breakdown on legal costs for Plata/Coleman, 1997-2012:

  • Inmates’ attorneys (lead firm, Prison Law Office, Berkeley), medical lawsuit: $8.3 million. 
  • Inmates’ attorneys (lead firm, Rosen Bien Galvan & Grunfeld, San Francisco), mental health lawsuit: $19 million. 
  • Court-appointed receiver’s attorneys and experts, medical lawsuit: $7 million. 
  •  Court-appointed special master and experts, mental health lawsuit: $48.4 million. 
  •  Private lawyers hired by the state, medical lawsuit: $14.3 million. 
  •  Private lawyers hired by the state, mental health lawsuit: $714,312. 
  •  Justice Department attorneys representing the state, medical lawsuit: $589,797. 
  •  Justice Department attorneys representing the state, mental health lawsuit: $3.5 million. 

Total legal costs for medical and mental health lawsuits: $101.8 million. 

Query: Wouldn’t taxpayers–particularly the ones exposed to the medical horrors that prompted the Plata/Coleman litigation in the first place–have preferred to see the medical system fixed without any need for litigation?

Props to Caitlin Henry for bringing this to my attention.

Book Review: Golden Gulag by Ruth Wilson Gilmore

So many great books have come out in the 21st century examining the genesis of mass incarceration; we’ve discussed many of them here. While many of these books look at trends nationwide, or even in the industrialized West, it is no coincidence that they tend to focus on California. Not only does California have the largest prison population (in absolute numbers; we are not leading the gloomy per-capita parade), but it has pioneered many of the punitive legislation and policies later adopted by other states.

Which is partly why Ruth Wilson Gilmore’s Golden Gulag provides a necessary local context to much of the conversation. Gilmore, a geographer, focuses on somewhat less analyzed aspects of mass incarceration in the Golden State: The economic and geographic conditions that have yielded massive prison construction.

After providing a dense and detailed introduction to the California political economy, Gilmore moves on to provide the central thesis of the book: California’s prison boom is a “prison fix” to a problem of fourfold surplus: Capital, land, labor, and state capacity. Her discussion of the mechanism behind prison finance, done through bonds to avoid accountability to taxpayers, shows how supply and demand has worked to create a prison boom that empowered the California Department of Corrections and rendered its construction activities immune to public critique.

1982 is a key year for Gilmore’s narrative. That year, the legislature approved facilities in Riverside, LA, and San Diego, as well as $495,000,000 in general obligation bonds to build new prisons, with the express goal to enhance public safety. In the same year, the legislature also reorganized CDC in a way that exempted its bidding and budgeting practices from the competitive process and instead allowed to assign work to outside consultants, to guarantee that construction occur quickly.

While prisons were initially funded by general obligation bonds, which are backed by the full faith and credit of the state, underwriters and legislators had to deal with “politically contradictory limit to taxpayers’ willingness to use their own money to defend against their own fears”. Their solution was to use lease revenue bonds, usually issued by the Public Works Board for college and university facilities, as well as for veterans and farmers. LRBs carried more risk, as they were only backed by a moral obligation rather than a fiscally binding one, but the expense was offset by the fact that LRBs did not have to be placed before the voters in general elections, and could therefore be quickly organized and issued so prisons could be built close to the time they were bid on, to avoid cost hikes. As a result, in less than a decade, the state debt for prison construction expanded from $763 million to $4.9 billion, an increase from 3.8% to 16.6% of total state debt.

In the next section, Gilmore examines the economic, demographic and geographic push for partnerships between CDC and various central valley towns who wanted to revitalize their economy through the labor and land improvement that would result. As her case study, she looks at Corcoran, an agrarian town with a diverse population suffering a serious economic downturn, in part because of ten years of weather calamities. Most Corcoran residents were hopeful that a prison would put their real property to work and generate employment; their visit to Susanville impressed them with the potential of a prison to revitalized the city. Despite vocal objection, the prison was built, but the town’s hopes were crushed. Employment and opportunities for locals did not improve, confirming general research that shows that, over time, prison towns compare unfavorably with depressed rural places that do not acquire prisons.

The last part of Gilmore’s book looks at anti-prison activism originated by mothers. While it is an interesting account, it delves too much into the personal and would be better as a piece on its own, as it is rather disjointed from the grand narratives and analysis that precedes it.

I’m not sure I am entirely on board with Gilmore’s interpretation of Marxist surplus theory, and I think it does not fare well in providing a full explanation of mass incarceration. But as a piece of the puzzle, the book offers an informative and important explanation of prison construction, one which is sorely needed as the mechanics of prison finance are cleverly hidden from state voters and taxpayers. Her tale of Corcoran is told from the perspective of someone who is not only well informed, but who cares deeply about these towns and their crushed hopes. It is certainly helpful to me as I try to understand and explain what happened after 2007 (when the book was published) and how the financial crisis impacted these developments.

Inside the Belly of the Beast: Correctional Corporation of America and the Recession

Much of what we’ve written about this year has to do with the scaling back of the punitive project because it has become financially unsustainable. We have come to call that process humonetarianism, and support it, with some reservations, as a practical platform for reform. But not all post-recession policymaking has been about reversing the punitive pendulum. Some of it is about increasing profits.

The main, but not by any means the only, beneficiary of these lean times, is Correctional Corporation of America, the largest non-governmental prison operator in the nation. Its shares are traded publicly, at $9 per share, and, while it is organized as a traditional for-profit corporation (“C-corporation”) it is examining the possibility of reorganizing as a Real Estate Investment Trust, which will mean special tax considerations and high yields for investors.

CCA institutions – of which it operates 67 and owns 49 – are located in 20 states and in DC (6 of their institutions are, at this point, vacant). After an initial period of time, population in its private institutions averages 89%. A minimum occupancy is often, albeit not always, mentioned in its contracts with the states to whom it provides services. The business model is structured around the concept of a “per-diem”, that is, the state pays a price per-inmate-per-bed-per-day. This is the average per-diem for all facilities (you’ll note differences in price, which stem from the fact that CCA-owned and managed facilities imply facility costs that CCA needs to pay even if it stays vacant):

06/12 – 09/12
06/11 – 09/11
01/12 – 09/12
01/11 – 09/11
FY 2011
FY 2010
Combined Per Diem Averages, All Facilities
Operating Margin
$17.85 (30.2%)
$18.11 (30.9%)
$18.33 (31.3%)
$18.20 (31.2%)
Owned and Managed Facilities
Operating Margin
$23.19 (34.5%)
$23.68 (35.6%)
$22.77 (33.9%)
$24.04 (36.1%)
Managed Only Facilities
Operating Margin
$5.32 (13.2%)
$5.48 (13.5%)
$4.56 (11.3%)
$6.00 (14.7%)
$5.34 (13.2%)
Who are CCA’s main customers? Well, the federal government, for one. Revenues from federal clients comprise 43% of CCA’s total revenue for the years 2010 and 2011. But of the states that contract with CCA, California is a major contributor, providing CCA with 13% of its management revenue. 

How can that be, you might ask? After all, CCA does not have institutions in California, right? After all, CCPOA flexed its union muscles to drive CCA out of California. Well, that is true. California houses its inmates in institutions outside the state: La Palma and Red Rock in Arizona, Tallahatchie County in Mississippi, and North Fork in Oklahoma. Similarly, Hawai’ian inmates are housed in two CCA institutions: Red Rock and Saguaro, both in Arizona. Here’s a promotional video in which CCA promotes Saguaro as an institution “uniquely fitted to Hawai’i inmates’ needs”. You will, of course, immediately note the savings pitch:

The story appears much less rosier in this newspaper article about how women inmates from Hawai’i fared at a CCA institution in Kentucky.

CCA is doing very well. As of the close of the market on Nov. 9, 2012, its stock was trading at $33.67 per share. With 100.05 million shares outstanding, the market cap sits at 3.37 billion dollars. It is considered slightly less risky than market, but riskier than industry average. CCA’s CEO and Predisent, earned $3,696,789 in basic compensation. The salaries of other high-ranked corporate officers are also impressive, and have risen considerably between 2010 and 2011. Its income, as per the following table, has increased dramatically since 2001. 
FY ending Dec. 31
Net Income
No. facilities Owned and Managed
No. Managed Only
No. Leased to Third Party Operators
$ 150,941

Despite a slight decline in occupancy (from 95% occupancy in 2005 to 89% occupancy in 2012), the overall number of beds CCA has and leases to states has increased, which explains the increase in income. 
CCA procures political good will through extensive donations and lobbying. Between 2003 and 2012, it contributed $2,161, 004 to political campaigns and ballot measures. Like CCPOA, CCA donates to both Republican and Democrat candidates (albeit twice as much to the former than to the latter.) Its main arena of contribution is California. where among other propositions it supported 2008 Prop 6 (the policing and anti-gang measure that eventually failed to pass.) CCA also contributed to 239 different lobbyists between 2003 and 2011, for a grand total of $1,858, 094. The most lobbyists were active in California – 16 of them. 
Recently, in light of the need for California to comply with the Plata decision, CCA and the state of California modified their contractual agreement, with the state planning to return its inmates from out-of-state institutions. CCA’s concern about this was explicitly discussed in their 10-Q for the third quarter of 2012, yielding the following gems:
It is unclear at this time how realignment or the five-year plan may impact the long-term utilization by the CDCR of our out of state beds. The return of the California inmates to the state of California would have a significant adverse impact on our financial position, results of operations, and cash flows. We housed approximately 8,700 inmates from the state of California as of September 30, 2012, compared with approximately 9,500 California inmates as of September 30, 2011. Approximately 12% and 13% of our management revenue for the nine months ended September 30, 2012 and 2011, respectively, was generated from the CDCR. (p.35)
And also,
“[W]e expect insufficient bed development by our partners to result in a return to the supply and demand imbalance that has benefited the private corrections industry.” (10-Q, p.30)
I expect these data provides some initial information on the main beneficiaries from the recession, and explains some of the incarceration trends we have seen since the financial crisis. More to come.

Many thanks to Amanda Leaf for her valuable and meticulous research assistance.

CCC Endorsements 2012: YES on 34. NO on 35. YES on 36.

In two weeks, California voters will be offered the opportunity to vote on three criminal justice initiatives: Prop 34, which would replace the death penalty with life without parole; Prop 35, which would increase penalties for sex trafficking, make evidentiary changes, and further burden registration requirements for sex offenders; and Prop 36, which proposes a small but significant revision to the Three Strikes Law. There has been much talk about each of these individual propositions. In this short piece, I examine them together and show how they represent two different strands of thinking about criminal justice: New ideas of parsimony and effectiveness through Props 34 and 36, and old-school punitivism packaged as victims’ rights, via Prop 35.
Proposition 34 has received the most media attention of the three, and with good reason. What is interesting about it is not only the historical opportunity to do away with the death penalty, but also the new justifications and realpolitikbacking up the campaign. Voters are encouraged to look beyond their ideological and philosophical opinions about the death penalty, and instead consider the way the death penalty is actually applied in California. The data, and the Legislative Analyst’s Office fiscal report, paint a disturbing picture. Since renewing executions in the 1970s, the state has executed merely 13 inmates. During that same time, 84 death row inmates died of natural causes. The paucity of executions stems from extensive (and expensive) litigation on behalf of the inmates, which is financed by the state, and is increasingly focused on chemical availability and injection techniques. The result is that the death penalty, in reality, has become no more than life without parole, under special conditions (housing 725 inmates in single, rather than double, cells, with extensive security measures), accompanied by decades of incessant litigation and health care expenses, with or without an execution at the end, the elimination of which will save the state a hundred million dollars in the first year alone according to the Legislative Analyst’s office analysis. Under these circumstances, philosophical differences about the state’s right to kill, the meaning of retribution, and the importance of closure for victims, become irrelevant. Some might think that the right thing would be to fix the death penalty, rather than eliminate it, but no proposition along the former lines is realistically forthcoming, and therefore many former (and current) supporters of the death penalty, including victims’ rights advocates, law enforcement officials, and original proponents of the California death penalty statute, have joined the Yes on 34 campaign.
Prop 36, which would reform the Three Strikes Law, is similar to Prop 34 in that it transcends ideological differences in penal politics to offer a practical, parsimonious fix, albeit a modest one in this case. Currently, the Three Strikes Law inflicts a double sentence on habitual offenders who commit a second violent or serious felony, and a twenty-five-years-to-life sentence upon commission of a third felony, even if the third felony is not violent or serious. The law also allows strikes to be imposed simultaneously, implying that the rationale behind its punitive regime is not deterrence, but rather incapacitation. Currently, California prisons house approximately 32,000 second strikes and 9,000 third strikers; an estimated half of the latter population is serving a twenty-five-years-to-life sentence for a third strike that was neither serious non violent. Beyond the consistently unfavorable media coverage of the injustices propagated on this population (including harsh sentences for thefts of items that cost less than ten dollars), Prop 36 raises serious fiscal issues. While third strikers are a small population, they serve lengthy sentences, which make them by definition expensive inmates. The state spends approximately 50,000 dollars per inmate per annum, and much of this amount is due to health care costs, which apply mostly to old and infirm inmates. The proposed reform to the law is fairly minor: Second strikers’ sentences will remain the same, as will the ability to obtain simultaneous strikes. The only reform would be eliminating the harsh sentence for non-serious, non-violent third strikes, making those a double sentence rather than twenty-five years to life.  Current non-violent third strikers would become eligible for resentencing. The Legislative Analyst’s office estimates annual savings that might exceed 100 million dollars.
As opposed to Props 34 and 36, Prop 35 is a classic example of old-school punitive thinking masquerading as a victims’ rights proposition. Marketed as supportive of sex trafficking victims to give it moral weight, the actual text does little, if anything, to help victims. Moreover, the proposition is a mixed bag of the sort of punitive propositions Californians have experienced (and voted on) for years: An increase in the already-considerable sentences of human traffickers, changes to the mens rea requirement for trafficking minors, nebulous criminalization of sex work, and a host of bizarre and unenforceable additions to the already-pervasive sex offender registration scheme (sex offenders would presumably have to report their email addresses and usernames, which cannot possibly be monitored or enforced in any way.) Beyond lip service to the idea of training police to respond well to victims, the proposition would not really improve the situation of victims of trafficking in any predictable way, and its backers and endorsers are counting on the morality hype to confuse voters into doing what seems morally right and vote yes. It would be a costly mistake, along the lines of the 2009 Marsy’s Law and countless other propositions of the same ilk.
The contrast between Props 34 and 36 on one hand and Prop 35 on the other is more than a juxtaposition of nonpunitive and punitive measures. It is a juxtaposition of a new way of thinking about criminal justice in an era of scarcity. Our paucity of resources requires a careful assessment of what actually works in criminal justice reforms, rather than bombastic expenditures on symbolic punitivism that do little to prevent crime or empower victims. It is not crude or crass to discuss money in this context. Our willingness to spend resources on the criminal justice resources is the clearest statement of our priorities as a society. Voting yes on 34 and 36 is sending a loud and clear message that the money spent on executions and unnecessarily lengthy incarcerations is better spent on education, health care, road maintenance, and—yes—improving police investigation.
This election offers you the opportunity to do away with old partisan thinking and reject the tried-and-untrue method of extreme punishment and ratcheted sentencing. Reverse the punitive pendulum and opt for justice that works, not punitive proclamations that promise and do not deliver. Vote yes on 34, no on 35, and yes on 36. 

Bringing Out-Of-State Inmates Home

A story published this summer on the California Watch examined the possibility of bringing back 9,500 California inmates currently serving their term in private institutions run by Correctional Corporation of America in Arizona, Mississippi and Oklahoma.

The grand strategic plan includes a provision for ending out-of-state incarceration, and it’ll begin by bringing back about 600 inmates. This is compounded by the fact that the state’s contract with CCA is based on occupancy rates.

In case you’re wondering who benefits from levels of mass incarceration, the CA Watch story says:

The revised contract will reduce California’s fee to the private prison group by $67 million for the current fiscal year, according to corrections spokeswoman Dana Simas. The state will save another $14 million in 2012 by cutting staff positions for the program, which is administered in Sacramento. 

California is paying the Corrections Corporation $61 to $72 per prison bed per day, making the original contract worth more than $280 million for 2012-13, according to the Legislative Analyst’s Office and corrections department figures.

The fiscal challenges involved in bringing back inmates involve the need to provide adequate housing and health care and the potential need for more construction. But if the total number of inmates to be returned to the state is less than 10,000, that would still render the prisons less crowded than they were in the pre-Plata era.

“Smart on Crime”: Retreating from Punitive Discourse Citing Financial Prudence

 In the decades prior to the financial crisis, as Jonathan Simon writes in Governing Through Crime, no politician, regardless of party affiliation, could afford to sound “soft on crime.” Propositions running counter to the received wisdom that more punitive is better had to be marketed assmarter, more efficient, or safer law enforcement – and, of course, these drowned in a sea of punitive propositions. But one of the key features of humonetarian discourse – the correctional discourse in the wake of the financial crisis – has been a partial liberation for politicians from the tough/soft on crime dichotomy. The usual tricks for dressing nonpunitive propositions as, well, not nonpunitive, still apply, but now there’s justification to do so: Punitiveness is not financially sustainable. 

Our friends at Sentencing Law and Policy posted a link to an “astute recent Washington Post piece” reviewing the GOP’s platform on crime after the RNC convention. The piece compares GOP criminal justice policies and ideals to those of yesteryear. The bottom line: Republicans are softer on crime. Here are a few snippets:
Policy experts agree that the omission [of the War on Drugs from the GOP platform] is significant. “This is less a ‘tough on crime’ document than you would have expected. And leaving out the War on Drugs [is] quite astounding,” says Mark Kleiman, a crime policy expert and professor at UCLA. “It’s a bit more of a libertarian attitude,” says Marc Levin, who runs a conservative criminal justice reform project called “Right on Crime” that’s attracted the support of Newt Gingrich and Grover Norquist.

What’s more, the 2012 platform includes new provisions that emphasize the importance of rehabilitation and re-entry programs to help ex-prisoners integrate back into society—using language that Kleiman describes as “a lot less ‘lock ‘em up and throw away the key.’” “While getting criminals off the street is essential, more attention must be paid to the process of restoring those individuals to the community,” the platform says. “Prisons should do more than punish; they should attempt to rehabilitate and institute proven prisoner reentry systems to reduce recidivism and future victimization.” The document also criticizes the “overcriminalization of behavior,” though it doesn’t elaborate on the point much further.

Both Kleiman and Levin believe it’s partly the outgrowth of a prison-reform push on the part of GOP governors whose state budgets have been saddled with high incarceration expenses. In recent months, Pennsylvania Gov. Tom Corbett, Ohio Gov. John Kasich, and Gov. Chris Christie have embraced crime reform legislation to support the kind of rehabilitation programs that the GOP platform now advocates, with some also reducing jail time for non-violent offenders. Conservative reformers like Levin are heartened by the changes. “We’ve gone a long way in four years,” he says, crediting the growing interest in more cost-effective ways to tackle crime.

This is not a coincidence. A coalition of conservative politicians, including recent signatory Jeb Bush, identifies as “right on crime“. The emphasis is on being fiscally prudent, which this post, again analyzing the RNC and the resulting platform, calls “reapplying basic conservative principles” to criminal justice. Yes, there are some punitive ideals advocated by the GOP – most notably with reference to gang conspiracies – but being comfortable 
Who else feels comfortable being less belligerent on drugs? Well, Pat Robertson, for one. But if you want to get more serious, that the father of classic market economics (and inspiration of the Reagan Administration)Milton Friedman would find marijuana prosecutions a waste of resources is perhaps not surprising, but the timing of this review, and the focus on revenue, means that these times call for new approaches among conservative politicians.
I’ve focused on conservative politicians so far, but the same analysis applies to progressive ones. In 2007, when Simon wrote Governing Through Crime, progressive politicians could not afford to be “soft on crime.” That hasn’t changed. What has changed is that progressive politicians, like conservative ones, apply to financial prudence as reasoning. One interesting example is the marketing of Prop 19 (“regulate, control and tax marijuana”), which failed at the ballot, as a revenue-enhancing proposition. I spoke to folks at Tom Ammiano’s office; going into the election, support for the proposition significantly rose when they marketed the proposal as revenue enhancing. There is some indication that the proposition’s failure was due to its vague tenets (leaving the mechanisms of sales up to the individual counties) rather than due to the basic idea.
To sum up: I don’t thin politicians have become ideologically soft on crime. But the crisis is giving them a license to be cheap on crime, in a way that appears more genuine and does not damage their credibility.
Cross-posted to PrawfsBlawg.

Sending the Incarceration Bill to Inmates

Image courtesy 

The most marked feature of the fiscal crisis on the correctional landscape has been a decline in the overall punitive discourse, policies, and technologies. States are giving up the death penalty; California is realigning justice with a focus on the community; and issues that were not considered viable, such as drug legalization, are now on the public agenda.

But the fiscal crisis didn’t only bring punitivism reversals and silver linings. With the good, we got some bad and ugly. And the ugly is the topic of tonight’s post.

Three recent bills on the Assembly and Senate Public Safety Committee agendas are all about rolling the costs of incarceration on… you guessed it… the inmates themselves. Here are some of the particulars.

SB 1124 (Canella) Cost of Incarceration

Remember the little theatre of the absurd from Riverside County, expecting inmates to pay $140 per night for their incarceration? Well, this beauty is in the same vein. Penal Code section 1203.1m currently authorizes the court to order reimbursement for the cost of incarceration if it finds the defendant has the ability to pay. This new bill would require the court hold a hearing for each and every defendant sentenced to state prison to determine his or her ability to pay all or some of the costs of incarceration.

Keep in mind that defendants make very little money, if any, during incarceration, have very little by way of financial support from friends and family members, and most if not all lose their jobs as a consequence of incarceration. It is exceedingly difficult for a formerly incarcerated person to find a job after release. It’s therefore likely that many of these hearings would result in the unsurprising determination that a defendant would not be able to pay for his or her incarceration. This process then would result in an unnecessary expenditure of funds.

AB 2261 (Valadao) Cost of Medical Visits

Remember Brown v. Plata? Why didn’t all these wise judges think of the simple solution for the medical crisis in California prisons–charging the inmates themselves for their care? This bill removes the cap of the $3 fee a sheriff is allowed to charge for an inmate-initiated medical visit and would authorize a sheriff to establish an unlimited standardized fee. As opposed to the other travesties, this bill would require the defendants to pay while they’re in prison, where they make the princely sum of between 8 cents and 95 cents an hour. It’s rather likely, therefore, that this bill would discourage inmates from reporting illness, which has a number of costly and dangerous ramifications.
First, this bill is likely to provoke a lawsuit, and I’ll be first in line to volunteer my help. Readers from Prison Law Office or from Rosen, Bien and Galvan: If this becomes reality I’m happy to put together an amicus brief. This, of course, means that additional resources will be spent on a costly, lengthy lawsuit, which will undoubtedly end in a federal court finding this travesty unconstitutional. Why not save us all the cost and hassle?

Second, this bill poses an immediate public health danger to inmates, correctional staff, and the communities that will receive formerly incarcerated people upon their release. There is currently an epidemic (WC) of AIDS and Hepatitis C infections in state prisons and in poor communities to which formerly incarcerated people often return. California prisons have a Hepatitis C Virus infection rate of 40%.

Third, this bill may disproportionally impact people with chronic health conditions or mentally challenged inmates.

incidentally, if you’re wondering why you have to pay for health care and have your health care questioned by the Supreme Court while inmates enjoy free health services, you might want to read this

AB 2357 (Galgiani) Cost of Assisting Law Enforcement Investigation

Finally, this bill would authorize CDCR to require an inmate be temporarily removed from a facility to assist with the gathering of evidence and impose a fee for the removal. Current law allows for inmates to be temporarily removed from their cells to attend college classes, but this bill would replace that opportunity for mandatory assistance with an investigation.

The scenario in which an inmate may be assisting law enforcement with the unveiling of potential suspects could put an inmate at risk of retaliation. This is a significant burden to place on inmates, who will likely not be willing to participate, let alone contribute their own meager funds to the investigation.

Incidentally, the CCPOA is all over this already. 

These are all exceedingly disturbing scenarios. There can be a debate about which aspects of incarceration constitute cruel and unusual punishment, but asking you to pay for punishment, even if it’s kind and usual, is absurd.

Private Prison Management Offers to Buy Prisons in Exchange for Occupancy Rates

Our four-year foray into the changes in correctional policies since the fiscal crisis has taught us that various states are scaling back their correctional apparatus to respond to money difficulties. California is no different. But as is the case with every regime, there are always folks who would benefit and make a quick buck from a broad social and economic problem.

This astonishing recent story in USA Today is a case in point. Many states are working on closing down their prisons for fiscal considerations. So, Corrections Corporation of America, of which we’ve written here before, is angling to purchase said prisons and operate them. But therein lies the rub:

The $250 million proposal, circulated by the Nashville-based Corrections Corporation of America to prison officials in 48 states, has been blasted by some state officials who suggest such a program could pressure criminal justice officials to seek harsher sentences to maintain the contractually required occupancy rates.

“You don’t want a prison system operating with the goal of maximizing profits,” says Texas state Sen. John Whitmire, a Houston Democrat and advocate for reducing prison populations through less costly diversion programs. “The only thing worse is that this seeks to take advantage of some states’ troubled financial position.”

Corrections Corporation spokesman Steve Owen defended the company’s “investment initiative,” describing it as “an additional option” for cash-strapped states to consider.

The proposal seeks to build upon a deal reached last fall in which the company purchased the 1,798-bed Lake Erie Correctional Institution from the state of Ohio for $72.7 million. Ohio officials lauded the September transaction, saying that private management of the facility would save a projected $3 million annually.

Linda Janes, chief of staff for the Ohio Department of Rehabilitation and Correction, said the purchase came at time when the state was facing a $8 billion shortfall. The $72.7 million prison purchase was aimed at helping to fill a $188 million deficit within the corrections agency.
Ohio’s deal requires the state to maintain a 90% occupancy rate, but Janes said that provision remains in effect for 18 months — not 20 years — before it can be renegotiated. As part of the deal, Ohio pays the company a monthly fee, totaling $3.8 million per year.

This is not new. CCA had AB 1070 passed in Arizona to guarantee prison occupancy, and built a prison on speculation in California. But it’s astonishing to see the machinations presented so matter-of-factly out in the open.

In these days of dire straits and realignment from state prisons to county jails, is it conceivable that California could cut a similar deal? I very much doubt it. CCPOA, the prison guards’ union, would object it with all their might, and might win the battle again, as they have before. But it’s a somber reminder that prisons are, above all, an industry, and subject to cynical manipulation by profiteers.

Props to David Greenberg for bringing this to my attention.