Original Death Penalty Supporters Now Fight for Abolition

Several people sent me this recent New York Times story, which is the perfect example of the kind of cost-centered discourse that has come to dominate American corrections. First, here’s the gist of the story.

The year was 1978, and the California ballot bristled with initiatives for everything from banning gay teachers to cracking down on indoor smoking. Both lost. But one, Proposition 7, sailed through: expanding the state’s death penalty law to make it among the toughest and most far-reaching in the country.


The campaign was run by Ron Briggs, today a farmer and Republican member of the El Dorado County Board of Supervisors. It was championed by his father, John V. Briggs, a state senator. And it was written by Donald J. Heller, a former prosecutor in the New York district attorney’s office who had moved to Sacramento.


Thirty-four years later, another initiative is going on the California ballot, this time to repeal the death penalty and replace it with mandatory life without parole. And two of its biggest advocates are Ron Briggs and Mr. Heller, who are trying to reverse what they have come to view as one of the biggest mistakes of their lives.

This story has all the ingredients of humonetarianism: Cost-focused concerns, bipartisanism, and change of heart under the banner of fiscal prudence.

“But it’s not working,” [Briggs] said. “My dad always says, admit the obvious. We started with 300 on death row when we did Prop 7, and we now have over 720 — and it’s cost us $4 billion. I tell my Republican friends, ‘Close your eyes for a moment. If there was a state program that was costing $185 million a year and only gave the money to lawyers and criminals, what would you do with it?’ ”

Supporters of the death penalty are also willing to concede that the cost argument is the only one that would carry weight in the death penalty debate:

Kent Scheidegger, the legal director for the Criminal Justice Legal Foundation, which supports the death penalty, said cost “is probably the only argument that has any chance. The people have heard all the other arguments for years, and it has never gotten any traction.”

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Props to David Takacs, Colin Wood, and Morris Ratner, for the link.

Sending the Incarceration Bill to Inmates

Image courtesy http://inmade.deviantart.com. 

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.

Reversing the Punitive Pendulum?

A while ago we discussed the question whether Californians were punitive, and offered a slew of sources that suggested that, when people are aware of the costs involved in the correctional monster, their level of punitivism decreases considerably.

Pew Center on the States’ new report offers encouraging news to anyone who, like me, believes that the financial crisis has changed the landscape of American corrections in fundamental ways.

Some key findings:

  1. American voters believe too many people are in prison and the nation spends too much on imprisonment.
  2. Voters overwhelmingly support a variety of policy changes that shift non-violent offenders from prison to more effective, less expensive alternatives.
  3. Support for sentencing and corrections reforms (including reduced prison terms) is strong across political parties, regions, age, gender, and racial/ethnic groups. 

These is no coincidence. I maintain that the financial crisis, and the growing public attention to fiscal prudence, is impacting public opinion like never before. Brown v. Plata and an increased media focus on prison expenditures increased the visibility of prisons, who had been invisible to the public eye prior to the crisis. The discourse is changing; policies are changing; and now, public opinion is changing, too.

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.

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Props to David Greenberg for bringing this to my attention.

“Unnecessary” Medical Treatment Ban Passes Senate Committee

The Senate Committee passed today SB 1079, initiated by Democrat Senator Michael Rubio. The proposal, whose full text is here, would amend the Penal Code to prevent CDCR from providing medical services unless they are “based on medical necessity and supported by outcome data as effective medical care.” The proposition gives the treating physician the discretion whether to provide a certain medical treatment.

This, in itself, is interesting. In the lacuna created by the end of the Receivership health services, questions about the quality and quantity of medical services are bound to arise. And, one of the trends stemming from the financial crisis is saving on health care. But wait, there’s more; SB 1079 provides a list of treatments that it deems “medically unnecessary.” Some highlights follow:

  • The proposal proclaims that mononucleosis and mild sprains “improve on their own without treatment” and therefore will not be treated.
  • The proposal proclaims that some conditions are so severe that they don’t respond well to treatment, and will therefore not be treated, and includes in the list multiple organ transplants and grossly metastatic cancer.
  • Then, we are regaled with a list of conditions that are “cosmetic;” some of these include conventional plastic surgery, but some of them include surgery for the purpose of sex reassignment and removal of tattoos (which could save someone’s life in a prison environment for obvious reasons.)
  • And finally, we’re explicitly told that gender reassignment surgery is not “medically necessary.”
  • Interestingly, the proposal goes as far as to explicitly rule out acupuncture and other methods, expressing not only a preference for Western medicine, but also a rejection of techniques that may be preventative and might actually save the state money in terms of disease prevention.
I’m dismayed, particularly about the classification of gender reassignment as not “medically necessary.” Try and tell a trans woman who is serving her sentence at a men’s prison that reassignment is not essential not only to her health, but to her immediate safety and well being. People do not pursue these operations on a whim; they do so because their gender expression does not match who they really are, and in a prison environment, it can save them from rape and torture. This is proposal, of which Michael Rubio brags on his website, is deplorable and should be protested and fought.

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Props to Caitlin Henry for alerting me to this.

25 Years of Sentencing

The Sentencing Project has a new collection of essays out, celebrating 25 years of existence and envisioning the sentencing and corrections of the future.

Alan Jenkins’ essay features the following analysis of the changes in public opinion:

A 2006 survey by the National Center for State Courts, for example, showed that crime was regarded as the country’s
top problem by only 2 percent of Americans, while another 2 percent considered illegal drugs to be the top prob- lem. By contrast, in 1993, crime topped a majority of the U.S. public’s list.


According to the NCSC survey, and others, 58 percent of Americans favor prevention and rehabilitation as the best way to deal with crime over enforcement and punishment, and 8 in 10 believe something can be done to turn someone into a productive citizen after they’ve committed a crime. By a huge margin (76 percent vs. 19 percent), the public pre- fers to spend tax dollars on programs that prevent crime rather than building more prisons.


While the death penalty remains popular standing alone, a 2010 poll commissioned by the Death Penalty Information Center found that 61 percent of voters favor clear alterna- tives like life in prison with restitution to victims’ families.


And, more so than in past years, significant segments of the public also see bias based on race and income as real and troubling problems. Large majorities, moreover, see socio- economic bias in the system. These are still tough debates, but ones we can win.


Low crime rates, diminished crime reporting by many news outlets, rising budget pressures, and smart communica- tions by advocates have driven this shift in public opinion. That mix has made possible changes that seemed unthink- able a decade ago: reform of New York’s Rockefeller drug laws, reentry and drug treatment alternatives in Texas, res- toration of voting rights in Rhode Island, abolition of the death penalty in multiple states, lessening of federal crack/ powder cocaine sentencing disparities, and the bipartisan Second Chance Act.


Moving toward a model criminal justice system, then, is more achievable today than at any time in recent memory. Now is the time to build on public support and channel it toward more transformative change. That means adding a more effective and collaborative communications strategy to the innovative advocacy, organizing, litigation, research, and policy analysis that reformers are already pursuing around the country.

I think Jenkins is right and the tides are turning, but I can’t help but ask myself whether it really is profound ideological change or scarcity-induced pragmatism. Not that the latter can’t be a basis for change.

Aging Inmates Cared For by Other Inmates

Photo courtesy Todd Heisler for the New York Times.
This weekend’s New York Times features an article on the California Men’s Colony, where some inmates–some of them convicted killers–care for elderly inmates suffering from dementia. 
The story has a financial angle, too. Teaching some inmates to care for others is a cost-saving measure, in addition to its other virtues; but it is also a reminder of the expenses involved in incarcerating aging inmates, whose lifestyle makes them age faster than non-inmates, as found in this report from Vera Institute of Justice.
With many prisons already overcrowded and understaffed, inmates with dementia present an especially difficult challenge. They are expensive — medical costs for older inmates range from three to nine times as much as those for younger inmates. They must be protected from predatory prisoners. And because dementia makes them paranoid or confused, feelings exacerbated by the confines of prison, some attack staff members or other inmates, or unwittingly provoke fights by wandering into someone else’s cell.
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Props to Zafir Shaiq for the link.

Realignment: How Not to Do It

Our outrage-de-jour for today comes from that paragon of punitivism, Riverside County (also responsible for many of CA’s death sentences). How to handle realignment and an influx of jail inmates? Let them pay for their stay.

I kid you not. The New York Times reports:

With already crowded jails filling quickly and an $80 million shortfall in the budget, Riverside County officials are increasingly desperate to find every source of revenue they can. So last month, the County Board of Supervisors voted unanimously to approve a plan to charge inmates for their stay, reimbursing the county for food, clothing and health care.


Prisoners with no assets will not have to pay, but the county has the ability to garnish wages and place liens on homes under the ordinance, which goes into effect this week.


As the county supervisor who pressed for the ordinance, Jeff Stone, likes to put it: “You do the crime, you will serve the time, and now you will also pay the dime.”

You like the rhyme? Are you a mime? Do you have lyme? Really, if we decide to adopt inhumane, atrocious and self-defeating policies, can we do so based on something empirically loftier than a cute word play?

A slightly less unacceptable explanation comes from neighboring Orange County:

“Sometimes you attack the absurd with the absurd,” said John M. W. Moorlach, an Orange County supervisor. “We’re all messaging to Sacramento that the state has do more than just take our money and download prisoners to us. We’re all finding different ways to scream.”

Mr. Moorlach – you are not writing a Samuel Beckett play. You are dealing with human beings, and the goal, supposedly, is for them not to return to prison. How is placing a lien on their post-jail earnings conducive to that?

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Props to Amir Paz-Fuchs for the link.

Realignment Funds: How to spend them?

This morning’s Chron has a fantastic story by Marisa Lagos about counties’ preparation for realignment. Among other things, it includes this critique from CJCJ:

Daniel Macallair, executive director of the Center on Juvenile and Criminal Justice in San Francisco, said the discrepancies between counties mirror what was already happening in each jurisdiction prior to realignment. The center conducts criminal justice research and provides direct services, including a substance abuse program for adults who are released from prison.


“Most counties are not prepared to meet the challenges of realignment, and for many of them it’s their own fault. They have engaged in bad practices and policies for 30 years,” he said. “The counties that will have the hardest time are some of the Southern California and Central Valley counties that have relied heavily on the state prison system.”


Macallair said probation departments need to change the way they approach their job and rely more on the community.


“What people don’t realize is that even though we’re the state of California and we have one set of criminal laws, you have 58 counties responsible for interpreting and applying those laws and essentially 58 different criminal justice systems,” he said. “You’re going to have well functioning counties able to meet this challenge and a lot that are going to lag behind. There’s nothing uniform about this.”

The Myth of Free Health Care for Inmates

In the last weeks I have been giving talks about various aspects of California corrections in universities all over the Bay Area. Interactions with college students are refreshing and interesting, especially as local elections are rolling in.

One argument I’ve heard a few times now in these discussions has to do with bitterness about the fact that inmates receive free health care, while those of us on the outside pay for our health care out of pocket. That this argument persists in the face of the Brown v. Plata aftermath is a grim reminder of the misinformation out there. For the benefit of those of our readers who hear this argument made in their immediate vicinity, or who have made this argument, here are some ways to answer it.

First, any complaint about inmates’  “free health care” begs the question whether what they receive in prison is, in fact, health care. The medical system in California prisons is so broken and inept that it was handed, several years ago, to a federal receiver. The budgetary woes have consistently hindered the receivership’s efforts to reform the system. And, eventually, the Supreme Court affirmed a three-judge federal panel decision to release tens of thousands of inmates because health care could not be provided given the overcrowding status of the prison. The bottom line, according to Jeanne Woodford, is that short-term inmates receive exams and an intake, and little beyond that. The Supreme Court decision and the brief appendices cite numerous examples of unnecessary disease and preventable death in California institutions. No, this is not comparable, by any standard, to whatever health care you might be receiving on the outside.

Second, the requirement to provide inmates with health care in prison stems from the fact that the government put them there. Warehousing people against their will is one thing. Doing so without caring for their basic needs is quite another. Some argue, of course, that this could be done more cheaply and efficiently. Much of the expense stems from the fact that we insist on imprisoning elderly, infirm inmates. The financial crisis is finally making us rethink this policy. And, by the way, check out Legal Services for Prisoners with Children’s initiative on behalf of old prisoners.

Third, apparently the free health care for inmates idea is no longer the universal rule. Much to my horror, I find that in some places, apparently, this is no longer the case.

As a coda, ever since I relocated to the United States I have been perpetually astonished at how little people in this country expect from their government. The argument against free health care for inmates is saddening because of its focus not on what you deserve to have, but on what someone else does not deserve to have. We talked about this “othering” of criminals before. Why not insist on being provided national health care at low or no cost, as is the case for every other industrialized democracy? The spite and bitterness against inmates is a distraction from a common goal, which is to be treated decently and fairly and being taken care of by one’s government, and it is proof that just and reasonable citizen expectations can be confounded if people are presented with an enemy to hate. I urge Californians to look beyond these divisive mechanisms and really think about their expectations from their leaders.