Judge Alsup: Death Row Conditions in San Quentin Reach Constitutional Threshold

(images courtesy CDCR.ca.gov)

Some of the recent discussion of prison costs has to do with the expenses associated with running San Quentin’s Death Row. As some of you may recall, a planned expansion of Death Row, deemed costly, was killed by a bipartisan initiative last year. The struggle around the planned expansion occurred against the background of 30 years of litigation regarding conditions on Death Row.

Yesterday, the Chron reports, Judge William Alsup of the California District Court ended this lengthy era of court supervision, after ruling that the improvements made to Death Row were enough to satisfy constitutional requirements. The improvements included getting rid of dirty water and rodents.

The nation’s largest Death Row now houses 665 men. Only 10 inmates were held there when the suit was filed shortly after capital punishment was reinstated in California in 1977.

Fama said the inmates’ original complaints were dirty and decrepit housing and a system that classified all condemned prisoners as security risks who had to be confined to their cells nearly 24 hours a day.

The 1980 consent decree required prison officials to evaluate condemned inmates individually and allow the less-dangerous ones the same exercise time and visiting privileges as non-Death Row inmates. It also required improvements in food, medical care, cells, showers and access to a law library.

As the Death Row population multiplied, the state periodically sought to end court supervision. But a series of reports by judicially appointed monitors over the years found a variety of violations, including a flawed cell assignment system that led to violent clashes and disciplinary rules that sent offenders to “strip cells” wearing only a pair of shorts.


One thing that strikes me as interesting is that the improvement in conditions consists, in some respects, of making the Death Row experience more like “regular” life imprisonment. Does this reflect a realistic understanding that Death Row has become no more than a very lengthy imprisonment period, with a possible (but not certain) ending by execution? The time between sentencing and execution has gradually increased since the reinstatement of the death penalty in 1977. San Quentin Death Row currently houses 665 men; between 1977 and 2008, 14 men were executed. The recent trend we have documented, of cost-driven moratoria on the death penalty, is complicated by the costs of death penalty-related litigation (Brandon Garrett of Virginia Law School presented an interesting work on this, in its early stages, at the Conference for Empirical Legal Studies last year); one possible scenario is that, at some point, Death Row will quietly become a thing of the past, and conditions (as well as inmates) will be indistinguishable from those pertaining to life without parole.

This actually has a precedent; after the Roper v. Simmons decision, which rendered the death penalty for juveniles unconstitutional, all death sentences against juveniles were shifted to Life Without Parole (for an argument that Roper deems LWOP unconstitutional for juveniles, as well, check out what the good folks at the Sentencing Law and Policy Blog have to say). The cost argument may be supplemented by some studies that doubt the efficacy and humaneness of death by lethal injection.
In any case, the improvement of conditions may make Death Row more akin to the general population prison, and may be an invisible step toward a CA moratorium that will go beyond a de facto lag in executions.

More Humonetarianism on a National Level: What About Us?

(image courtesy NYT.com)

This New York Times piece from a couple of weeks ago highlights another aspect of humonetarianism: To cut costs, states close prisons down or switch to community programs. Here’s the “local interest” bit:

In California, where Gov. Arnold Schwarzenegger, a Republican, has called for $400 million to be cut from the state’s corrections budget, officials are seeking to remove low-level drug offenders from the parole supervision system and to provide them treatment options instead.

Like other states making such changes, California is led by a governor who long opposed such shifts in prison policies. But Mr. Schwarzenegger, as well as other leaders and lawmakers who are far more conservative, has come around to a view held by advocates of sentencing and prison reform that longer sentences do little to reduce recidivism among certain nonviolent criminals.

“In California we are out of room and we’re out of money,” said the state’s corrections secretary, Matthew Cate. “It may be time to take some of these steps that we should have taken long ago.”

But we are by no means the thriftiest state. Other states have been examining prisons to see whether they are efficient, and are closing them down. And other states are also reforming their sentencing laws, particularly minimum sentences for drug offenders. Many concede that the big waste of money is parole and are cutting down on supervision.

A few thoughts on some of the trends in the piece:

  • By closing down prisons and transporting people to other prisons, we may be saving costs, but we’re perpetuating the setup of prisons as far away gulags. A visit from one’s family becomes more unlikely if everyone is shipped to a facility far away.
  • The cuts, as Jennifer Steinhauer points out, go both ways. While treatment options are perceived to be cost-saving mechanisms, they need to defend their own funding. In emergency times, when short-term thinking is prevalent, lengthy project evaluation, examining declines in recidivism, may not be possible.
  • This is something I’ve already said regarding the Plata/Coleman decision: I am deeply concerned that mass release of prisoners with no job skills and little support by way of reentry programs is a self-defeating step, which, without overhauling other systems, will lead to their return to prison. This sort of thing will only work if parole is retooled as an instrument of rehabilitation and hope.

Humonetarianism: The New Correctional Discourse of Scarcity


Diligent followers of recent correctional policies may have noticed a recurring leitmotif in our discussions of various different initiatives and solutions to the crisis. I refer, of course, to money. Recent examples we’ve discussed on this blog were the Death Row moratoria; the demise of Prop 6, mainly due to costs; the San Quentin Death Row expansion; the cuts to the overall budget; the battles regarding the Community Justice Center; and, of course, this recent quibble about Prop 9’s counsel provisions. It seems like, in the last few months, the only arguments for or against any given correctional policy are all about the money.

I’ve started working on a broader piece about this. Here’s the abstract:

What do a community court, an expansion to Death Row, and an extension of incarceration periods prior to parole have in common? All three have recently fallen out of favor with California correctional policymakers, not for substantive reasons, but for lack of resources. This paper analyzes the impact of the financial crisis on correctional policies in California, identifying an emerging discourse I call “humonetarianism”. Humonetarianism is characterized by a value-free, superficial, cost-centered approach to correctional initiatives and institutions, which are assessed by their contribution to the state’s deficit rather than on their actual or even perceived merits.
The paper opens by tracing the history of humonetarian discourse and its interaction with the punitive, public-safety-centered discourse of corrections since the 1980s, and the actuarial warehousing policies of the 1990s. The history of sentencing and parole policies in the state shows how humonetarianism emerged when punitive policies, pushed to their logical conclusion, became untenable. The paper continues by providing several examples of humonetarianism: the 2008 correctional propositions (5, 6, and 9), the San Francisco Community Justice Center, the expansion to San Quentin’s Death Row, the decrease in parole supervision over foreign-born inmates, and the recent Plata/Coleman tentative decision. It then generalizes, from these examples, the main features of humonetarianism: cost-driven discourse, political bipartisanship, and a sense of emergency. While this discourse may appear, at first blush, to be less punitive than policies from previous decades, the paper argues that it is extremely harmful in the long run, due to its superficiality, cynical usage by interest groups, and shortsightedness.

I’ll be happy to get your feedback on the idea, here, or by email to aviramh at uchastings dot edu.

Karlton v. Prop 9: 1:0


More news on several controversial portions of Prop 9, which we discussed here in the past. As our gentle readers may recall, Prop 9 put into legislation more victim involvement in the criminal justice system, including parole hearings. While some of this was not news – and in several counties, at least, was common practice before the passage of Prop 9 – this is the aspect that was prominently displayed on the supporters’ website. However, Prop 9 also included punitive provisions: lengthening parole procedures as well as limiting the right to counsel in parole revocation hearings for indigent defendants.

Yesterday, Judge Karlton invalidated the portions of Prop 9 that infringe on parolees’ rights, particularly the restrictions on the right to counsel, due to a contradiction with a permanent injunction, reached as a consent decree, in 1994 following litigation regarding parolees’ rights. The Sac Bee reports:

In the parolees’ 1994 lawsuit, Karlton found the state’s existing procedures were in violation of the 14th Amendment’s due process guarantee. His resulting permanent injunction was ratified by the state and is legally construed as a consent decree.

“To the extent that Proposition 9 conflicts with the permanent injunction, the former may not be enforced,” Karlton said in Thursday’s 34-page published opinion, which cited the supremacy clause of the U.S. Constitution.

The Constitution defines itself as the “supreme law of the land, and its judiciary supreme in construing what the law is,” the judge declared.

“The state’s action is not given special deference by virtue of having occurred through the initiative process,” he added.

Interestingly, the debate about Prop 9 has, yet again, been framed in terms of money. The Chron cites some of the arguments:

“Especially now, we cannot afford to be spending tens of millions of dollars on unnecessary privileges for convicted felons,” said Nina Salarno Ashford, representing Crime Victims United of California. She urged the state to appeal the ruling “to defend the will of California voters, and the pocketbooks of California taxpayers.”

Indeed. Because, what would get us talking about victim rights and due process for parolees, if not our pocketbooks?

Receivership Salaries

(image courtesy sacbee.com)

Another attack leveled at the medical system receivership – this time, on the receivership employees’ salaries. The Sac Bee reports:

Last year, seven of 26 staffers – including two part-timers – still were paid more than the $225,000 annual rate earned by corrections chief Matthew Cate. Eight enjoy large Department of Corrections and Rehabilitation pensions on top of their salaries.

And prison doctors and nurses dominate the state’s best-paid roster. More than 240 doctors or nurses, state employees overseen by the receiver, were paid more than the $226,359 earned by the state prison department’s medical chief.

The receiver’s request to raise salaries was granted by the court in 2006 in order to “improve quality of care, help fill vacancies, reduce cost of contractors”.

The Fresno Bee has a somewhat more forgiving take on the salary issue:

The first federal receiver earned far above what a public service mission entails — a salary and benefits package of $620,000. The current receiver, J. Clark Kelso, hired a little more than a year ago, earns $224,000 — in line with the California corrections chief’s pay of $225,000.

Now, after a year in office, Kelso has eliminated three positions and shifted most of the remaining 25 receivership positions to state pay scales. That’s the right approach and will save a few million dollars.

But beyond focusing on receivership salaries, Californians ought to keep in mind the major driver of staggering costs for prison medical care: The state imprisons too many old, feeble and chronically ill prisoners no longer considered dangerous.

Jeff Adachi Shows Up in Person to Defend Clientele at the CJC

(image courtesy sfgate.com)

Here’s another piece of news that got away during our conference preparations: the new battle arena between San Francisco Public Defender Jeff Adachi and the Mayor is the Community Justice Center.

As reported by the Chronicle a few days ago, Adachi had said that, if the Public Defender’s budget would not be adjusted, he would have to staff the CJC in person, which he did, representing a homeless woman he located himself on the street. I really recommend reading the article – Albers’ and Adachi’s personalities really shine through. And, those interested in seeing more of Adachi as a litigator will enjoy the PBS movie Presumed Guilty.

Defining the Problem

The conference launched yesterday to a great start. Our first panel, Defining the Problem, featured five thoughtful perspectives on the broad picture of the California problem.

Craig Haney, who opened the panel, had some disturbing realities to share with us. He had brought with him – and shared with us on the big screen – pictures from his visits to prison, each of which was really worth a thousand words. Inmates sleeping in cafeterias and gyms; medical examinations conducted in little cages; group therapy in cages inside a bathroom; triple bunks; and unbelievable density. The numbers were quite alarming. While the prisons become more and more overcrowded, crime rates have gone down; as Haney explained, most experts agreed that the rising imprisonment rates did not account for the crime decline. Also, the gap between prison population and prison capacity keeps growing. Haney did a terrific job of tying the California situation to the broader U.S. correctional disease, while highlighting the particulars that made CA a unique situation; particularly, the truly disappointing percentages of people exposed to rehabilitation programs and receiving medical care. And, as per one of the slides in his presentation, we got yet another sobering look at the expanding gaps between non-minorities and minorities in terms of their exposure to the correctional system.

Jeanne Woodford marshaled her extensive experience in prison management to identify three main sources for California’s misery: sentencing policies, uniform policies, and overcrowding. She traced the history of determinate sentencing since the late seventies, pointing to the many deficiencies of our penal code. She also pointed out the lack of coordination between jurisdictions regarding implementation of correctional policies, highlighting the following amazing fact (which I didn’t know): a person could be – and many people are – on probation in several different counties simultaneously, in which case one spends one’s post-incarceration time shuttling between counties several weeks for drug testing and following often contradictory courses of action. Without fact-based policies, and without clear objectives for incarceration beyond “punishment”, wardens and staff cannot be assessed by desirable measures such as decline in recidivism rates or program completion, but rather by how many prisoners escape; not a promising recipe for healthy corrections. Finally, Woodford discussed the fact that overcrowding is not only a problem in itself; it is a complicated factor which exacerbates everything else that happens in the system.

Harold Atkins from Centerforce was cheered by the audience after providing us with a valuable personal account of the problem from the perspective of one who had gone through it and who now reaches out and educates others. Having gone into prison for the first time as a young adult, he told us of being shocked not only by the lack of personal space, but also by the lack of safety. He also highlighted not only on prison conditions but also on the success of programs; the good fortune to be picked up for a program does not fall into the lap of many, and the programs’ reach is very minimal. The programs themselves, Atkins reminded, should not be implemented without thought; we must test them repeatedly to see what works and make them as widely available as possible. Another thing to consider are his wise words regarding the norms and codes that lead young people into prison; growing up in a difficult neighborhood, at the time of his incarceration he had already been well-schooled in the rules by which prison environment functions. Much of the educational work we have ahead of us needs to happen on the outside.

Frank Zimring followed by delivering a passionate “grumpy sermon” from the podium, in which he shared four important insights. First, the California problem is not an acute one; it is a chronic one. Prison population has been steadily growing for a long time, since the 1980s. Second, and importantly, the problem can be traced to the catastrophic error Zimring labeled the “correctional free lunch”. As Zimring pointed out – and as most amazed audience members had not known before – the “division of labor” between county and state is not conducive to anything helpful. The county decides on the sentence, while the state (who, in the era of determinate sentencing has no control over the length of stay) picks up the cost. Therefore, sentencing does not take into account the broader correctional costs. If this was not shocking enough, the third and fourth insights have to do with the deeper causes for these horrors: they were not part of a broad conspiracy, but rather a combination of complete oversight on the part of the politicians who established determinate sentencing and the logical conclusion of direct democracy in california: citizens do not mind paying to let people rot, but they very much mind paying to make their life nicer. One important answer advocated by Zimring was to establish, as soon as possible, a coherent Penal code, which is not full of “pick and choose” voter-approved policies and special laws, and which is updated to reflect the real severity of crimes.

After these, CDCR Secretary Matthew Cate had his work cut out for him, and his reply reflected the kind of concern and thoughtfulness that one expects from someone in charge of a system in serious crisis. The overcrowding challenge, he argued, made everything in prison more difficult, and required serious prioritizing of services. He shared the big dilemmas faced by CDCR in light of the gubernatorial 400,000,000 budget cut. Cutting all programs was not an option, and curring staff was also problematic; one possible answer to the cuts was engage in parole reform. In tems of parole reform, said Cate, we need to pay attention to who we place on parole, and rather than using a general parole policy, reserve parole for serious offenders through identification of crime types (unsurprisingly, sex offenders came up) or more efficient crime indexing. We also need to consider the introduction of credits for achievement in programs on the inside as categories for release. Cate also advocated building more prison cells, particularly for the Level 4 population, as part of the plan to alleviate overcrowding and treat inmates humanely. One thing he had come to learn, said Cate, was that with the given resources – that is, reliance on state employees – capacity would never catch up with population, and community assistance was hugely important.

The audience asked some difficult questions, many of which were addressed to Secretary Cate. One such question involved the elderly and frail prisoners, and whether release policies were not better for this group than creating special wards for them. The other problem raised was that, while prisoners are generally assessed for their medical, mental, dental, and vocational needs, it is very difficult (and, as Atkins’ experience shows, rare) to actually match a prisoner with a befitting program. Another important issue, directed at Zimring, involved an attempt to gauge an “acceptable” number of prisons, which turns out to be a very difficult number to produce.

Is the Death Penalty Too Expensive?


(image courtesy NYT.com)

The New York Times reports on a trend we’ve already seen here a couple of times: penal reform and punitive measures being abandoned not on their merits, but because of their costs. The article is not California-specific; the picture you see is from Virginia, and the data in the piece come from Maryland.

Nevertheless, the point is an interesting one: whatever the public thinks about the death penalty, it’s expensive, and several states are abandoning it in light of the costs.

Death penalty opponents say they still face an uphill battle, but they are pleased to have allies raising the economic argument.

Efforts to repeal the death penalty are part of a broader trend in which states are trying to cut the costs of being tough on crime. Virginia and at least four other states, for example, are considering releasing nonviolent offenders early to reduce costs.

What about the CA costs? The California Commission for the Fair Administration of Justice provides some data. The report offers abundant information on other aspects of death penalty administration, pointing primarily to long delays in carrying sentences and to inadequate representation. However, if the fiscal argument is the one that might win the day, the bottom line is as follows:

The additional cost of confining an inmate to death row, as compared to the maximum security prisons where those sentenced to life without possibility of parole ordinarily serve their sentences, is $90,000 per year per inmate. With California’s current death row population of 670, that accounts for $63.3 million annually.

The report makes a variety of suggestions regarding reforms in death penalty administration, including guarantees for adequate representation. Those in themselves might be quite costly, and the public might be as reluctant to implement them as the legislators were when they killed the planned expansion to the San Quentin Death Row just a little while ago. One wonders how the new trend in other states may play out in California, or at least in counties in which the prosecution actually seeks the death penalty.

Stimulating Corrections: Federal and State Levels

image courtesy ebudget.com

As many of us were relieved to find out this week, the State of California FINALLY has a budget, (albeit dependent upon voters) of which corrections expenditures constitute 7.3%. A summary is here and the full breakdown by numbers is here. As in all state agencies, you’ll note cuts across the board for all departments. Several things in particular that stand out, in no particular order:

  • The general budget decreases from $431,285 in 2008-2009 to $394,996 in 2009-2010.
  • Treatment programs are cut down from $83,059 in 2008-2009 to $58,937 in 2009-2010. The cuts will be particularly felt in mental health treatment programs, which will be losing about 60% of their budget. However, the cuts in medical services are far less dramatic.
  • Prison security will suffer much less than treatment programs: from $91,651 in 2008-2009 to $87,077 in 2009-2010.
  • There seem to be less cuts to the juvenile justice system. Educational programs for juveniles will not suffer very much, and juvenile parole services will be funded at almost the same level. There’s even a modest increase in medical services to juveniles.

And, on the federal level, our friends over at the Criminal Sentencing blog have observed that the stimulus favors punitive over rehabilitative programs. Others at TalkLeft have numbers to support these arguments. This doesn’t seem to reflect what we have been promised by the White House.