The Dark Side of Gideon

It is universally acknowledged that the 1960s were good years for criminal defendants. The Warren court, subscribing to a philosophy of constitutional incorporation, bright-line rules and prioritizing accuracy over efficiency, provided defendants with a series of constitutional rights which would be chipped at by the post-Warren courts for many years afterwards. The right of rights – a right as well as a tool to achieve other constitutional rights – was the right to counsel, affirmed in Gideon v. Wainwright, and later (in Argersinger v. Hamlin and in Scott v. Illinois) more narrowly defined as to include any situation of “actual imprisonment”. Those of you seeking some of the story behind the monumental Gideon decision, will find it in Anthony Lewis’ fantastic Gideon’s Trumpet

By making the decision applicable against the States, the Warren court did more than intervene in State systems of values; it intervened with their budget. It required the states to come up with good strategies to provide subsidized representation for indigent defendants. An important rationale behind this decision was the wish to generate more equality between defendants of different classes. One way of doing so was through creating Public Defender offices around the country, though not all states did so, and some chose to work with contracting and retainer systems. 
The dark side of providing broad, free legal services has to do with the quality of service. Research in the 1960s and 1970s was not oblivious to this fact, and was notably skeptic about the quality of representation offered by public defenders to indigent clients. Abraham Blumberg compared such representation to “a confidence game”, in which the public defender, in cahoots with other members of the “courtroom workgroup”, “cons” the client into agreeing to plea bargains, thus making the system run more soothly and efficiently. The recently and sadly deceased David Sudnow, in a no-less classic and more systematic study, shows how defense attorneys assess the extent to which a specific case is a “normal crime”, which can be “sold” as such to the prosecution for a preset tariff. Newer studies, such as Debra Emmelman’s 1996 article and her subsequent book, Justice for the Poor, had a more positive and less cynical perspective on legal services to indigents; however, Emmelman points out to the lack of resources faced by lawyers in these situations.
And, indeed, with no resources, institutions that provide ample representation cannot guarantee quality representation. Just a few months ago, the New York Times reported on several Public Defender offices around the nation who had refused to take on new cases, being unable to properly and adequately handle the load they faced. 
These budgetary problems have come to haunt the Bay Area as well. As reported in today’s Chronicle, the San Francisco Public Defender, Jeff Adachi, is reporting a dire lack of resources, and arguing that if the office does not get two more paralegals, some cases will need to be referred to firms outside the office. This bothers me profoundly not only as someone who cares about the criminal justice system, but also as an educator who prepares public-interest-minded students for, among other vocations, careers in public defense. This year, scores of bright, talented, and hardworking students will graduate from top law schools, and many of those who seek public defender careers will find themselves working temporary hourly-paid jobs, or, worse, unpaid clerkships. 
The system is not only bankrupt where prisons are concerned; it is bursting at the seams in other stages of the criminal process. Here’s hoping that things get better sooner rather than later.

Prison and Parole Cuts: Lean Years, Lean Budget

Yesterday’s Sacramento Bee reported Governor Schwarzenegger’s new budget plan, which has direct implications for corrections policy. The gist of it is as follows:

Parole would be eliminated for all nonserious, nonviolent and non-sex offenders. The proposal would cut the parole population by about 65,000 by June 30, 2010, or more than half of the Christmas Eve count of 123,144.

At the same time, the corrections plan calls for increasing good-time credits for inmates who obey the rules and complete rehabilitation programs. Combined with the new parole policies that would result in fewer violators forced back into custody, the proposal would reduce the prison population by 15,000 by June 30, 2010. It stood at 171,542 on Dec. 24.

The California Correctional Peace Officers’ Association, who has previously opposed the Governor’s plan for state employees to go on one-day furloughs, opposes this plan as well. This letter from their Executive Vice President, Chuck Alexander, has bits and pieces of the proposed budget in it.

A careful read of the budget will reveal cuts not only in the prison and parole systems, but also in the medical system’s Receiver’s budget. Some rehabilitative re-entry programs might actually see an increase in funding.

Desperate times, apparently, call for desperate measures. These steps echo what I commented on here and here: we no longer care about the merits of a correctional institution or project. We only care about how much it costs.

But wait: isn’t de-crowding our prisons, and cutting our parole system, a good thing on the merits as well? This is a bit more complex than it might seem. A credit accumulation system is certainly a good thing, and it helps focus the release decision on factors having to do with actual behavior and change, rather than on a regurgitation of issues concerning the offense itself (a bit more on that, from a broader doctrinal perspective, in this piece by W. David Ball). But rather than eliminating mandatory parole, if we had the leisure of giving this reform careful thought, we would perhaps be better off retooling parole to act as an institution encouraging and supporting ex-felons in re-entry, rather than supervising them and returning them to jails for technicalities? A reformed parole system could be an invaluable resource for people seeking housing and work upon their return from prison. As is becoming plainly obvious, this is not about common sense, even if, in some cases, it seems to make sense as a policy. This is strictly about the money.

It remains to be seen whether the legislator will approve these changes. To Be Continued.

There is Nothing New Under the Sun

There are prisons, into which whoever looks will, at first sight of the people confined there, be convinced, that there is some great error in the management of them; the sallow meagre countenances declare, without words, that they are very miserable; many who went in healthy, are in a few months changed into emaciated dejected objects. Some are seen pining under diseases, “sick and in prison;” expiring on the floors, in loathsome cells, of pestilential fevers, and the confluent small-pox; victims, I must say not to the cruelty, but I will say to the inattention, of sheriffs, and gentlemen in the commission of the peace.

The cause of this distress is, that many prisons are scantily supplied, and some almost totally unprovided with the necessaries of life.

–John Howard (1777), The State of the Prisons in England and Wales, with an Account of Some Foreign Prisons

May the return of the light this season, and this year, bring some light to our correctional policy.

Happy Holidays, and a Happy New Year,


More Budgetary Kills: A Bipartisan Initiative to Oppose Death Row Expansion

… and now, to something completely different.

Two legislators from opposing parties and with opposite views on the death penalty joined Tuesday to propose cutting off funding for a new $395 million Death Row at San Quentin, calling it a boondoggle that a financially strapped state can’t afford.

“The Death Row expansion is a bottomless money pit,” said state Sen. Jeff Denham, R-Atwater (Merced County).

“We should use this opportunity, with the state running out of cash, to step back and rethink this project,” said Assemblyman Jared Huffman, D-San Rafael, who joined Denham at a news conference in front of the aging Marin County prison. He referred to the project as a “Cadillac Death Row” and said many condemned inmates could be safely housed at other prisons during their decades of appeals.

A few thoughts:

1) We may have finally arrived to a place where supporters and opponents of the Death Penalty are faced with the realities of a prison system that, regardless of its moral merits, cannot be financially tolerated.

2) At a time when emergency discourse is the required preface to every public discussion, we no longer, perhaps, have the leisure to contemplate what sort of legal system produces such a huge number of people on Death Row in the first place, and the prevalence of this emergency discourse might, yet again, postpone that important discussion.

3) Compare and contrast this to the previous post about the axing of the CJC budget. Perhaps we have finally come to a point in which we can no longer have discussions about the merits of correctional initiatives, only about their costs.

Community Justice Center Budget Killed

This little morsel of information is hidden somewhere in the middle of this Chron piece about the San Francisco budget crisis:

Arguing that they cannot start new programs when existing services are being cut, a majority of the board voted Tuesday to kill nearly $1 million in funding for a pet project of the mayor’s, a Tenderloin community court that will prosecute crimes like aggressive panhandling and selling drugs.

The supervisors voted 6-4 against the Community Justice Center, with supervisors Bevan Dufty, Sean Elsbernd, Michela Alioto-Pier and Carmen Chu pushing to keep it. Outgoing Supervisor Gerardo Sandoval, who was elected to be a Superior Court judge, abstained. The mayor can veto the measure; it would take eight votes to override his veto.

This, coupled with the defeat of Prop L, may very well be the end of something that could be a very promising solution to a problem of large magnitude. Granted, there is not a lot of independent research examining recidivism rates in community justice programs (and more research should be generated, because programs like Red Hook in Brooklyn have been around for a while.) However, it does not seem as if the current court system has provided such as successful answer to the mix of homelessness, poverty and drugs in the Tenderloin. Much of the critique leveled at the court by the Coalition for Homelessness stems from misunderstandings about how it is supposed to operate (see for yourselves). And, as those who followed previous posts on this may recall, the sad thing is that this court – whether Mayor Newsom vetoes the decision to kill it or not – seems to have become no more than a pawn in the power struggle between Newsom and Supervisor Chris Daly. While this bickering is going on, we are stymied in a legal system that does not address problems in a holistic way.

If we don’t try progressive solutions to our sentencing system, particularly in quality-of-life issues, we’ll never know for sure whether they do, indeed, reduce recidivism. There is only one way to know, and that is to give this a try. And, much as it pains me to say this as a music and dance lover, this might be worth a bit more to the city as a whole than keeping the opera, symphony, and ballet budgets intact.

The Fiscal Meaning of Prison Explosion

Sunday’s editorial in the Sacramento Bee provided a critical take on the impact of prison overcrowding on state expenditures. The emphasis is particular on the aging prison population and the costs associated with medical care.

Those in prison aren’t eligible for Medicare, the federal health program for the nation’s elderly. Nor are they eligible for Medi-Cal, the health program for the poor in which costs are shared between the state and the federal government. So the entire cost of health care for older, sick prisoners falls on the state.

All of this is now in the federal courts because the state has refused to create alternatives for dealing with feeble, chronically ill prisoners to reduce prison population – or to pay for building facilities to house these prisoners.

One court is examining whether to cap prison population. Another is looking at whether to force the state to pay for seven 1,500-bed facilities. Both courts could make decisions as early as January.

However, a recent empirical study by John Pfaff from Fordham University suggests that prison overcrowding seems to stem more from masses of parole violators being returned to prison for short periods of time, than from people “housed” in correctional institutions for a lengthy period of time. How much of those sentences translate to more prison expenses remains unclear. I strongly recommend reading the full article; beyond the important implications, the study is beautifully done and is a great example of good quality empirical scholarship.

(The Sac Bee piece brought to my attention via the fabulous Sentencing Law and Policy blog. Thanks!)

Fixing the Prison Medical System: More Hurdles?

The Chron reported yesterday that Governor Schwarzenegger won a reprieve from the 9th Circuit Court, after failing to come up with the money required for fixing the medical system.

As some may recall, last month Clark Kelso, the receiver appointed by Henderson to fix the prison’s broken health system, filed this motion against the Governor, arguing that the State’s financial crisis could not be used as an excuse not to turn in the 8 billion dollars required for the plan. Judge Thelton Henderson stopped short of finding the Governor in contempt for refusing to turn in the money.

As the Chron reports, after a break in the proceedings before the 9th Circuit, which granted the stay, Kelso expressed more willingness to work with the Governor to find a solution.

Incidentally, while the paper suggests that part of the problem is the secretive nature of Kelso’s plan, there are actually abundant materials about it readily online. Kelso’s full reports on the plan, his projects (such as the prison pharmacy project and the construction projects), are all on the California Prison Health Care Services website.

So, is Kelso running a “parallel government”, or should the government cooperate with the plan and produce the necessary funds? You be the judges of that.

The Greening of Prisons?

(image from Chronicle article)
The Chronicle reports today of an interesting trend in some prisons, albeit not in CA: greening, composting and recycling. In Indiana, North Carolina, and Oregon, prisons are installing solar panels, using energy-saving equipment, and composting food scraps.

While this is, in principle, a cost-saving measure, it has had some heartwarming “side effects.” The Chron reports:

The responsibility of caring for the prison’s three hives of Italian honey bees falls mostly to Daniel Travatte, 36, a soft-spoken former drug addict who is serving 10 years for attempted armed robbery.

Under the supervision of prison counselor Vicki Briggs, Travatte has learned to harvest honey – which inmates occasionally eat with breakfast biscuits – and use beeswax to make lotions. He’s become an expert on their habits.

“I’m trying to change myself,” said Travatte. “A lot of people go through prison with no intention of changing. I love working with the bees. It keeps me busy. I have a lot of responsibility to take care of.”

While there isn’t scientific evidence that such activities are helping inmates, Nalini Nadkarni, an environmental studies professor at Evergreen State College in Olympia, Wash., notes anecdotal evidence that it’s working.

“They were stimulating their minds and having conversations that were different than ‘How much more time we have left?’ ” said Nadkarni.

While Cedar Creek went green out of economic necessity – it had to conserve because it didn’t have the wastewater capacity to expand four years ago – it is now embracing other benefits, said Dan Pacholke, a state prison administrator who helped implement many of the practices.

What about CA, which has pioneered greening efforts in so many other arenas of public and private life?
(image from CDCR website)
Well, as per this press release from CDCR, a series of energy-saving projects, including solar plants, are beginning to be implemented in prisons. These seem to belong more in the cost-saving family of changes; no composting, not to mention no community gardens or beehives. One can only hope that someone at CDCR will see the broader perspective and involve the inmate community in greening efforts; something very good might come out of this, beyond saving money.