Brown v. Plata Decision Analysis: Justice Kennedy’s Opinion of the Court

As per legal requirements, the Supreme Court reviewed the factual findings of the three judge panel using a standard of “clear error”, which allows them less leeway for intervention than in the legal findings, which are reviewed de novo. For this reason, the factual basis for the decision is quite familiar to those who read the original three-judge-panel order, but the legal analysis is rather extensive.

The decision outright rejects the state’s contention that the three judge panel was convened incorrectly, stating that the time that passed and the lack of relief necessitated this step. Documenting the standard of care, the abundant vacancies for medical and mental health staff, and the shortfall of resources, Justice Kennedy states that the court had waited long enough before recurring to this admittedly drastic step. Justice Kennedy supports and affirms the three-judge-panel conclusions that overcrowding was the dominant reason for the violations, as well as their conclusion, after considering many other options, that other remedial efforts had not borne fruit and therefore the only recourse would have to be reducing the population.

While the population reduction is of “unprecedented sweep and extent”, writes Justice Kennedy, “yet so too is the continuing injury and harm resulting from these serious constitutional violations.” Justice Kennedy devotes a large portion of the opinion to a detailed description of the overcrowded conditions, mentioning the San Quentin converted gym (the very first picture we posted on this blog.) He provides details of numerous incidents in which inmates received appalling mental and physical care. He also provides details of the history of both cases, Coleman and Plata, and how the various measures to which the state resorted throughout the years (including a special master for the mental health system and a federal receiver for the medical system) failed to improve conditions. In this part he relies extensively on data from the receiver and the special master, as well as in the three-judge-panel decision. His description of how overcrowding is a direct and indirect cause for the abysmal health care follows closely the original panel order, citing, among other factors, the unsanitary conditions and the reliance on lockdowns, both discussed extensively in the original order.

“To incarcerate, society takes from prisoners the means to provide for their own needs. Prisoners are dependent on the State for food, clothing, and necessary medical care. A prison’s failure to provide sustenance for inmates ‘may actually produce physical ‘torture or a lingering death’.’. . . Just as a prisoner may starve if not fed, he or she may suffer or die if not provided adequate medical care. A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society. . . [i]f the government fails to fulfill this obligation, the courts have a responsibility to remedy the resulting Eighth Amendment violation.”

As far as its practical implications, the decision is a mixed blessing. Readers looking for an unequivocal statement on behalf of decarceration will find its bottom line a bit more disappointing than it leads to believe. Justice Kennedy is cautious to mention, in the very opening paragraphs, that “[t]he order leaves the choice of means to reduce overcrowding to the discretion of state officials. But absent compliance through new construction, out-of-state transfers, or other means–or modification of the order upon a further showing by the State–the State will be required to release some number of prisoners before their full sentences have been served.” By framing the issue in this way, Justice Kennedy sets the stage for the state to avoid early releases by recurring to damaging, malignant techniques, which will only increase mass incarceration in the long run.

However, there are also more optimistic bits. Justice Kennedy seems fairly convinced by the evidence presented to the original panel about the possibility of reducing population without causing an increase in crime and endangering public safety. He also affirms the panel’s estimate as to the extent of the reduction. His words on that are a vote of confidence in the panel’s work, comparing their projection that a 137.5% capacity would be reasonable under the circumstances to the situation in other states and in the federal prisons.

Justice Kennedy is careful to cut the state some slack in the timing of its plan. He encourages the state to “move for modification of the . . . order to extend the deadline for the required reduction to five years from the entry of the judgment of this court, the deadline proposed in the State’s first population reduction plan. . . [t]he three-judge court, in its discretion, may also consider whether it is appropriate to order the State to begin without delay to develop a system to identify prisoners who are unlikely to reoffend or who might otherwise be candidates for early release.” For this purpose, an extension of time is encouraged. While some inmate advocates may scoff at this, it’s important to remember that, from now on, the state and the courts need to cooperate, and in the course of this long-term cooperation, many compromises will have to be made.

Petition to Save Troy Davis’ Life

Two years ago we covered Troy Davis’ probably wrongful conviction and his impending execution and participated in a day of action on his behalf. About a month ago, the Supreme Court rejected Davis’ appeal.    Richard Stack, who has been helping Davis and his family, has asked to share this blog post, inviting you to join the petition to the Governor of Georgia to save Troy’s life.

Please sign the online petition and forward it to friends and colleagues. We may still be able to prevent a terrible, irreversible, tragic miscarriage of justice.

Brown Defends Prison Guard Contract

Jerry Brown’s traditional alliance with CCPOA, the prison guard union, has resumed, much to the chagrin of Republican lawmakers. The Chron reports:

Overall, the six contracts would, among other things, do away with imposed furloughs, increase state employees’ pension contributions and temporarily cut pay for a year before giving top earners a raise in 2013. Schwarzenegger negotiated the same terms with other public worker unions last fall, and lawmakers approved those contracts.


But opposition to the new agreements was fueled this week when the nonpartisan Legislative Analyst’s Office concluded the six contracts would result in only about $179 million in savings next fiscal year for the deficit-plagued general fund, not the $308 million assumed in the 2011-12 budget approved by lawmakers last month. Those savings will disappear by 2012-13, the analyst said, when costs will begin to climb once again.


Republican lawmakers said the discrepancy is a major problem, because the state is facing a $26.6 billion deficit.

Brown’s election must have seemed a blessing to the CCPOA, who have had long and prosperous relationships with California governors and with Brown in particular (see Joshua Page’s informative post on that). Their abysmal relationship with Schwarzenegger, that culminated in a 2008 effort to recall him, is now behind them. Guard salaries were somewhat cut (to $92,000, which was subsequently balanced by allowing overtime); here are more details on the pay scale and contracts. We can expect the “toughest beat” rhetoric to resume its influence in California politics.

Is There a Death Penalty Religious Divide? Jesus on Trial

Things are a’changing for the death penalty. After the good news from Illinois, we recently learned that Ohio is discussing an abolition bill. Thinking of the prospect of such developments in California brings on some reflection on the hearts that could be won for the cause, and how that might be achieved.

A common misperception is that, in the American context, public opinion about the death penalty tends to follow the political republican/democrat divide. With regard to politics, this is inaccurate, albeit not completely untrue, as data from a Gallup Poll show. The death penalty is supported by a majority of both Republicans and Democrats, but while it is endorsed by 80% of Republicans, support rates for Independents and Democrats are 65% and 58%, respectively. Similar patterns hold for conservatives, moderates and liberals. Moreover, the common perception that religious Americans support the death penalty – brought about by lumping the death penalty with social conservatism – is a blanket statement that requires some nuancing. People who attend religious services are slightly less likely to support the death penalty. Support for the death penalty is more pronounced among Protestants than among Catholics or those without preference. It is important not to go into generalizations: Many religious organizations oppose the death penalty, or at least offer a nuanced view of it. And several religious leaders are actively involved in anti-death-penalty activism; here’s a recent example from Georgia.

These findings disprove a common assumption among progressive seculars that the “blame” for the death penalty can be squarely placed upon the shoulders of religious conservatives, and that their collaboration in abolishing it can only be bought using arguments of cost or technology. People’s intellect and moral judgment should be respected and appealed to; it is a mistake to settle for technical arguments, like costs or the machinery of death, just to ensure a broader coalition. I agree with Justice Blackmun that doing so cheapens us all.

Which is why I love what the Church of the Holy Comforter in Virginia did this Easter weekend. The church held a modern-day trial for Jesus, with participation of real DAs and PDs, and included a death penalty phase.

There is much to like about the enterprise. Of course, setting what was essentially a political trial in a Roman colony in the context of the American criminal justice system does not do justice to historical context; however, the trial was used as an educational device not only with regard to the Passion story, but to modern American criminal justice. Jesus qualified for a public defender, as would many indigent clients; his role was played by a young African American man, depicting the overrepresentation of minorities in the criminal process. I find this particularly evocative because of the persistent whitewashing of Jesus’ image in art and culture. It’s also interesting that the jury chose to convict; I think there are good arguments of Fourth, Fifth and Sixth Amendment violations that could be made, including the use of an informant (though new archeological findings may shed new light on such arguments.)

I particularly appreciated the perspective of Mark Osler, the prosecutor who organized the trial. Osler’s personal conviction against the death penalty was formed through a religious experience:

“They read John 8, about stoning the adulteress, and I’m like everyone else – when I hear a story like that, I put myself in the role of Jesus. A lot of prosecutors who are Christians who talk about that will say, ‘Jesus said go and sin no more.’ And what I came to eventually is, ‘I’m not Jesus. I’m part of the mob. I’m somebody with a stone in my hand.’


“I think that story is very direct that we don’t have the moral authority” to execute prisoners, Osler said.

These nuanced and important understandings of empathy and morality, rather than arguments of cost and chemical availability, will eventually be those that win more hearts to the abolition cause.

Hawai’i Inmates: It’s a Long Way Back Home

image courtesy myinmatelocator.com

Remember the horrors and corruption involved in keeping Hawai’ian inmates out of state? And David Johnson’s report on the futility of out-of-state incarceration as a recidivism reducing measure? Well, don’t hold your breath. The inmates aren’t coming home any time soon. And, of course, CCA is in the mix. The Honolulu Star Advertiser reports:

State prison officials are seeking proposals to house about 1,800 prisoners outside Hawaii after the current prison contract ends in June, despite Gov. Neil Abercrombie’s call to bring inmates back home as soon as possible.
“It is very clear at this time that we do not have all the facilities to bring the inmates back,” said Martha Torney, deputy director of administration for the state Department of Public Safety. “As the state moves toward bringing the inmates back to the islands, that will determine what our needs are in the future.”
The state already has returned some prisoners since Abercrombie said in December that he wants prisoners to stay in Hawaii.
During the quarterly rotation in January, the state brought back about 125 more prisoners than were sent to the mainland, Torney said.
The request for proposals, published March 1, designates a three-year contract, but the state can cancel the contract and remove prisoners at any time, Torney said. The submittal period ends March 31.
One company that plans on submitting an offer is Corrections Corp. of America — the fifth-largest U.S. prison operator behind the federal government, California, Florida and Texas.
Hawaii has 1,699 prisoners at CCA’s Saguaro Correctional Center and 58 inmates at CCA’s Red Rock Correctional Center, both in Eloy, Ariz., Torney said.
Brad Regens, CCA’s vice president of state partnership relations, said CCA is not lobbying to keep Hawaii’s prisoners out of state.

Beyond the obvious exasperation, I have two burning questions.

1. Does anyone actually believe Regens? Remember, these are the folks whose money and backdoor wheeling and dealing brought us the horrific and racist Arizona SB 1070.

2. Has anyone given any thought to the fact that, with Hawai’i’s low crime rates, most of these people don’t need to be in ANY prison – on the island or on the mainland – and therefore, no “facilities” need to be built? We’ve talked plenty about what California needs to learn from Hawai’i. Now, Hawai’i, learn from California’s experience: If you build it, they will come.

In the meantime, if you’re looking for a Hawaiian inmate housed in the mainland, away from family and friends, keep looking. You won’t find them here.

The New CCPOA? Victimhood, Citizenhood, and Political Gain





(image from Crime Victims United of California website)

Joshua Page‘s recent post on the California Progress Report about the CCPOA raises interesting and important questions about the extent to which the union that shaped so much of California’s punitive landscape has morphed into a more realistic factor in policymaking. In recent years, the CCPOA has periodically spoken out against overcrowding (in our conference, too) and issued its fairly sensible blueprints for reform. “Despite these signs of a softened stance,” writes Page, “the CCPOA’s actions question the extent of its transformation.” He cites sad examples such as the CCPOA’s objection to the now-forgotten Prop 5 and its support of Prop 9, the punitive proposal masquerading as a victim rights proposition, which voters in CA approved under the name Marsy’s Law.

There are other important aspects in Page’s post, but the one I found most intriguing has to do with the CCPOA’s deliberately political use of victim rights.

In the early 1990s, the union effectively created Crime Victims United of California (CVUC), the most influential crime victims’ organization in California, if not the entire United States. (The union also helped establish another influential group, the Doris Tate Crime Victims Bureau, but now works primarily with CVUC). The CCPOA committed extensive resources to the development of the CVUC, providing office space, lobbying staff, attorneys, and seed money. Harriet Salarno, president of CVUC, says forthrightly, “I could not do this without CCPOA, because we didn’t have the money to do it.” Beyond material resources, the CCPOA also taught CVUC how to play the political game.

The union developed CVUC for strategic purposes. This is not to say that CCPOA’s leaders do not genuinely care for and want to assist victims and their families; they do. But, CVUC helps the CCPOA achieve its goals from outside its ranks in three main ways. First, it validates the CCPOA’s public claims that prison officers are uniquely skilled professionals who work the “toughest beat in the state.” Second, it legitimates the CCPOA’s assertions that the union serves universal purposes (rather than its individual, pecuniary interests) by supporting crime victims and bolstering public safety. Just as families of schoolchildren promote teachers and the California Teachers Association, crime victims’ advocates endorse prison officers and the CCPOA. Third, CVUC helps the union achieve policy objectives, often providing a sympathetic face to campaigns that advance a “tough on crime” agenda.

In Governing Through Crime, Jonathan Simon writes about the transformation in our cultural conception of the quintessential citizen – from yeoman farmer to small business owner to victim. Our whole concept of public policy is constructed around our understanding of ourselves as potential victims. Our fetish of homeownership, the emergence of gated communities – all reflect our understanding of the home primarily as a fortress against crime (plenty of crime, of course, happens in upscale well-protected mansions, too; it’s just not the crime you would expect.) The fact that a prison guard union finds it useful to create a pet organization of victim advocacy attests to the immense symbolic power of the victim in social discourse. CCPOA, a well-seasoned player in the California political game, understands the power of the victim all too well.

Smart on Crime Group Release Report to Congress

Today, a diverse coalition of organizations, including the Innocence Project, the Campaign for the Fair Sentencing of Youth, the Constitution Project, the National Association of Criminal Defense Lawyers, the Brennan Center for Justice at New York University, and Families Against Mandatory Minimums, has released a comprehensive report titled Smart on Crime: Recommendations for the Administration and Congress.

We will read and assess the recommendations, but for now, here are some tidbits from the press release:

In its review of virtually every major criminal justice issue—from overcriminalization to forensic science—from juvenile justice to the death penalty—and from indigent defense to executive clemency— the report serves as both a source of information and a spur to action for the Administration and Congress.

Just two days before the release of the Smart on Crime report, Senator Jim Webb (D-VA) reintroduced the National Criminal Justice Commission Act which would “create a blue-ribbon, bipartisan commission of experts charged with undertaking an 18-month top-to-bottom review” of the nation’s criminal justice system and offering concrete recommendations for reform. The establishment of such a commission is among the major recommendations of the report.

Virginia Sloan, President of The Constitution Project, said about Smart on Crime, “The criminal justice system is supposed to be about justice—for victims, for those rightly and wrongly accused and convicted of crimes, and for all of us. But a system that costs too much and makes so many mistakes provides justice for no one. Smart on Crime contains an ever-increasing and bipartisan consensus on how to fix the problems that have for too long plagued the system.”

In addition to its recommendation that a National Criminal Justice Commission be formed, the report—developed and published by the Smart on Crime Coalition, a group of more than 40 bipartisan organizations and individuals—offers nearly 100 detailed policy recommendations across 16 criminal justice areas. While contributors do not necessarily have positions on each issue addressed, there was universal agreement that the current system—with its rampant cost, inefficiency, and injustices—is in urgent need of reform.

“Overcriminalization of federal law threatens every American’s liberty and drains the public coffers with pointless prosecutions and unnecessary incarcerations,” said Norman Reimer, Executive Director of the National Association of Criminal Defense Lawyers. “We urge every elected official to end the madness that has produced over 4,450 federal criminal statutes, and countless tens of thousands more arising from the unchecked power of regulatory authorities.”

A Smart on Crime Web site was also created to provide policy-makers, media and the public with quick and easy access to the report. In addition, visitors to besmartoncrime.org can hear report contributors share their insights on criminal justice system problems and solutions in videotaped interviews.

It is interesting that the report comes out, with references to Jim Webb, just as Webb announced that he will not run for another term.

Humonetarianism Transcends Politics: Conservatives Support Prison Reform


This week’s L.A. Times features a piece by Richard Fausset on conservative politicians who transcend the “tough/soft on crime” traditional divide to support prison reform — for humonetarian reasons.

Now, with most states suffering from nightmare budget crises, many conservatives have acknowledged that hard-line strategies, while partially contributing to a drop in crime, have also added to fiscal havoc.

Corrections is now the second-fastest growing spending category for states, behind Medicaid, costing $50 billion annually and accounting for 1 of every 14 discretionary dollars, according to the Pew Center on the States.

That crisis affects both parties, and state Democratic leaders have also been looking for ways to reduce prison populations. But it is conservatives who have been working most conspicuously to square their new strategies with their philosophical beliefs — and sell them to followers long accustomed to a lock-’em-up message.

Much of that work is being done by a new advocacy group called Right on Crime, which has been endorsed by conservative luminaries such as former House Speaker Newt Gingrich, former Education Secretary William J. Bennett, and Grover Norquist of Americans for Tax Reform.

. . .

The right’s embrace of ideas long espoused by nonpartisan and liberal reform groups has its own distinct flavor, focusing on prudent government spending more than social justice, and emphasizing the continuing need to punish serious criminals.

Even so, the old-school prison reform activists are happy to have them on board.

“Well, when the left and the right agree, I like to think that you’re on to something,” said Tracy Velazquez, executive director of the Justice Policy Institute, a Washington think tank dedicated to “ending society’s reliance on incarceration.”

Julie Stewart, founder of Families Against Mandatory Minimums, even believes that Republicans, with their tough-on-crime credentials, may have a Nixon-in-China cover to push reform further than Democrats.

“There is a safety conservatives have,” she said. “And for better or worse, Democrats don’t always have that luxury.”

The Right on Crime website features Reagan’s decarceration efforts and welcomes influential figures, such as Broken Windows theorist George Kelling.

This group embodies the spirit of humonetarianism. The message is all about retreating from mass incarceration based on considerations of fiscal prudence. One of the more promising aspects of humonetarianism is the potential for rethinking deeper aspects of incarceration policies after questioning them based on the fiscal consideration, and indeed, the group embraces traditionally “lefty” concepts such as restorative justice, a libertarian take on overcriminalization, eliminating mandatory minimums, and support for geriatric parole. The website has a wealth of information, abundant links to research, and much conservative knighthood clout.
The question, of course, is the extent to which this new and wise move among conservatives will find a good home among the New Right tea party-ers.
———
Props to Colin Wood for the L.A. Times link.

Legislative Analyst’s Office Unhappy with Brown’s CDCR Budget

The Legislative Analyst’s Office has just issued a report critiquing Jerry Brown’s plan for the CDCR budget (which we briefly discussed just a few days ago), and it does not paint a pretty picture. LAO finds serious overbudgeting in some areas, and is deeply concerned with CDCR exceeding its budget in several areas.

General Fund support for CDCR, particularly with regard to CCPOA salaries and overtime (already on the top steps of the salary scale), appears to be excessive, and CDCR has already exceeded its authority in these matters. Among the other surprising expenditures are $55.2 million in medical transportation costs, $20.5 million in legal costs (wouldn’t it be cheaper to decrease population, which would also mean that the population decrease order would not have to be fought in court?), and $17.3 million in “empty beds” in case incarceration needs change.

The LAO report critiques the CDCR practice of notifying the legislature of budget shortfalls after the fact, thus coercing legislators to increase the budget in restrospect. Also, the budget does not take into account savings in adult parole and administration, which might mean the money could go elsewhere, where it is needed.

A particularly thorny issue is the fact that the budget assumes that CDCR will be making personnel cuts it has no intention of making absent a reduction in inmate population.

The budget, says the report, does not hold CDCR accountable regarding its expenditures, and there is no guarantee against CDCR pulling its retrospective budgeting trick again on the legislature. LAO therefore recommends that the legislature demand accountability and accuracy in the correctional budget.

Jerry Corrections Watch: Abolishing State Juvenile Facilities?


Today we begin a new CCC enterprise: Over the coming weeks and months, we’ll be closely monitoring Governor Jerry Brown’s correctional policies. During the gubernatorial race, we posted on Brown’s history with corrections, and with CCPOA, as former governor and as attorney general. It will be interesting to see whether Brown follows in Schwarzenegger’s footsteps in terms of thinking outside the box (perhaps sometimes too far out) about our correctional crisis.

Brown’s new budget deviates from Schwarzenegger’s pattern of budgetary cuts in the correctional apparatus, especially compared with painful cuts to other aspects of government. In fact, the Brown administration plans —
an ongoing augmentation of $395.2 million within the CDCR’s budget to correct previous budget shortfalls and more accurately reflect the operational costs within the adult institutions’ budgets. This augmentation will allow the Department to fully fund the salary and wages of authorized Correctional Officers, Sergeants, and Lieutenants, which is critical to ensuring that the adult institutions have the resources to pay security staff. The augmentation also provides funding to correct for a decline in the number of overtime hours available to CDCR to use within its adult institutions. Due to salary and wage increases for correctional officers over the last eight years, and no increase in departmental overtime funding, the overtime base does not go as far as it originally did. The use of overtime is critical to ensuring that all necessary staffing levels are maintained at CDCR’s institutions, and the decline in funded overtime hours has been a primary cause for redirections of funding from other activities.
In other respects, however, the Brown administration continues a trend from the Schwarzenegger administration: Diverting inmates from the states system to county-level jails. This move continues to draw ire from county officials, given the overcrowding in jails. The latest incarnation of these efforts is Brown’s plan to abolish the state youth correctional system and incarcerate juveniles exclusively at county-level facilities. Given the distressing facts we know about state juvenile facilities, and the decline in juvenile crime, this is not necessarily a bad idea. Barry Krisberg, however, voices a serious concern that counties will prosecute more juveniles as adults, to circumvent Brown’s policies.