When I reviewed the causes and effects of the 2008 Financial Crisis for Cheap on Crime, I relied partly on a series of lectures given by Ben Bernanke, Director of the Federal Reserve. As he explained it, the Great Recession was a case of “triggers and vulnerabilities:”
The triggers of the crisis were the particular events or factors that touched off the events of 2007-09–the proximate causes, if you will. Developments in the market for subprime mortgages were a prominent example of a trigger of the crisis. In contrast, the vulnerabilities were the structural, and more fundamental, weaknesses in the financial system and in regulation and supervision that served to propagate and amplify the initial shocks. In the private sector, some key vulnerabilities included high levels of leverage; excessive dependence on unstable short-term funding; deficiencies in risk management in major financial firms; and the use of exotic and nontransparent financial instruments that obscured concentrations of risk. In the public sector, my list of vulnerabilities would include gaps in the regulatory structure that allowed systemically important firms and markets to escape comprehensive supervision; failures of supervisors to effectively apply some existing authorities; and insufficient attention to threats to the stability of the system as a whole (that is, the lack of a macroprudential focus in regulation and supervision).
The distinction between triggers and vulnerabilities is helpful in that it allows us to better understand why the factors that are often cited as touching off the crisis seem disproportionate to the magnitude of the financial and economic reaction.
Several of my colleagues (see especially here and here) are making the important argument that the spread of COVID-19 in prisons is a very big deal, to the point that not addressing it properly could negate much of our social distancing effort outside the prison walls. But what is it about prisons that make them such an effective Petri dish for the virus to spread?
Think of COVID-19 as the trigger, and think of the disappointing–even shocking–reluctance of federal courts to do the right thing as another trigger. These triggers operate against a background of serious vulnerabilities, some of which preceded the decision in Brown v. Plata and some of which emerged from it.
First, what gets called “health care” in CA prisons really isn’t. Litigation about it took a decade and a half to yield the three-judge order to decarcerate, and until then, horrific things were happening on a daily basis. Despite ridiculous expenses, every six days, a CA inmate would die from a completely preventable, iatrogenic disease. The cases that spearheaded Plata, including the story of Plata himself, were emblematic of this (see Jonathan Simon’s retelling of these stories here.)
It is important to think again of what it was, exactly, about overcrowding that made basic healthcare impossible to provide. First, medical personnel were, and still are, difficult to hire and retain. California has gigantic prisons in remote, rural locations, and it is difficult to attract people willing to work healthcare in these locations. Housing, clothing, and feeding so many people in close proximity meant not only that violence and contagion were more likely to occur, but also that the quality of these things–diet, especially, comes to mind–was extremely low. Every time someone had to be taken to receive care, the prison would have to be in lockdown, which meant more delays and big administrative hassles. The administration and pharmacies were total chaos. People would wait for their appointments in tiny cages for hours without access to bathrooms. People’s medical complaints were regularly trivialized and disbelieved–not, usually, out of sadism, but out of fatigue and indifference in the face of so much need. Moreover, the scandalously long sentences that a fourth of our prison population serves mean that people age faster and get sick, and make the older population an expensive contingent in constant need of more healthcare and more expense.
The outcome of the case–reducing the prison population from 200% capacity to 137.5% capacity–was mixed in terms of the healthcare outcomes. But it also yielded four important side-effects. First, it exposed the inadequacy of county jails for dealing with a population in need of both acute and chronic healthcare. Second, it created big gaps in service between counties that relied more and less on incarceration. Third, because the standard was the same for the entire prison system and relied on design capacity (rather than, following the European model, on calculating minimum meterage per inmate), it yielded some prisons in which overcrowding was greatly alleviated alongside others in which the overcrowding situation was either the same as, or worse than, before Plata. And fourth, because of the way we dealt with Plata, we became habituated to resolving overcrowding with cosmetic releases of politically palatable populations (i.e. the “non-non-nons”) rather than addressing a full fourth of our prison population–people doing long sentences for violent crime and getting old and sick behind bars.
So, now we face this trigger–COVID-19–with the following vulnerabilities:
We still have a bloated system, because the Court used the wrong standard to create minimal space between people for their immediate welfare.
We’re now dealing with lots of small systems that answer to lots of different masters and have different priorities and ideologies.
We already have a lousy healthcare system behind bars, which could not be fixed even with the release of more than 30,000 people, and that was *without* a pandemic going on.
We have gotten used to doing a “health vs. public safety” equation that doesn’t make sense and biases us against people who committed violent crimes at the wrong time and for the wrong reasons. In fact, we are so married to the idea that we can’t second-guess mass incarceration, that the newest preposterous suggestion has been to protect people from COVID-19 by… introducing private prisons into the mix.
Stack these vulnerabilities against the trigger, and what you have is an enormous human rights crisis waiting to happen in the next few weeks. It’s already started.
And if you wonder whether this can be contained in prisons, well, it can’t. Guards don’t live in prison, obviously; prison staff has already been diagnosed positive in multiple prisons. Stay at home all your like, wear your home-sewn masks all you wish; we have dozens of disease incubators in the state and apparently very little political will do do anything to eliminate them.
What should we do about it? Follow the excellent roadmap that Margo Schlanger and Sonja Starr charted here, primarily point four: get over your icky political fears about public backlash and let older, sicker people out–even if they committed a violent crime twenty or forty years ago. If you are a governor or a prison warden with some authority to release people, do as Sharon Dolovich implores in this piece and use your executive power to save lives.
A couple of years ago, Michael Bien alerted us at his keynote speech at WSC to an alarming trend: mental illness was on the rise in CA prisons even as they were getting decrowded. He and his lawyers ran the numbers lots of possible ways, and couldn’t find a comprehensive explanation.
And now, we have some distressing data about the suicide rates in CA prisons. The Chron reports:
Last year, an average of three California inmates killed themselves each month in state cells — 34 total suicides in a system with 129,000 inmates. That amounts to an annual rate of 26.3 deaths per 100,000 people, the highest rate in California since at least 2006.
That figure is higher than the national average for state prisons (20 per 100,000 in 2014) and federal prisons (14.7 in 2018, according to the Washington Post). From 2001 to 2014, according to the Bureau of Justice Statistics, twice as many people killed themselves in California cells than in the entire federal system, which contains more prisons and inmates. There were 448 total suicides in California prisons during that period and 222 in federal prisons.
The inmate suicide rate has now increased for four straight years in California, and it may rise again in 2019. According to the state, 16 inmates committed suicide during the first six months of this year. Michael Bien, an attorney who represents mentally ill prisoners, said he knows of 10 more inmate suicides since then, for a total of 26 so far in 2019. A state spokeswoman said she couldn’t confirm the 10 recent deaths because “some investigations are still ongoing.”
Read the article in its entirety: it exposes a disturbing pattern of neglect and cover-your-asses mentality and the futility of the ongoing Coleman litigation. What is wrong? and how can we fix it?
There are lots of interesting cases involving animal welfare, animal rights, and the complicated terrain of animal personhood. But what is unique to the criminal process is that at the center of the proceeding is a human defendant facing a possible incarceration sentence. An interesting aspect of this project involves the way activists perceive, and make meaning, of this prospect, and one possible way to think about this is to rely on Idit Kostiner’s typology of legal mobilization schemas.
Kostiner, who interviewed social justice activists, found that they related to what the law could do for their movement in three primary ways: instrumentally (whether they might “win” their rights through an effort to legislate or through impact litigation), politically (whether the very effort of participating in a mobilization project will bring the movement together, give it a political direction, galvanize it), and culturally (whether constructing the struggle in a rights perspective offers avenues of change in thought and perception.) While Kostiner found evidence of all three schemas in her interviews, she also hypothesized that there’s a progression from one to the other – that people move from the instrumental to the political to the cultural.
I found Kostiner’s work helpful in 2004, when I started working on the opposite question: why the polyamorous community in the Bay Area was not mobilizing for legal recognition of nonmonogamous relationships. Like Kostiner, my interviewees were influenced by considerations belonging in the three schemas. The instrumental perspective was served by the fact that many activists had found other ways to secure their rights, such as contracts, power of attorney documents, wills and trusts, and others found that keeping their relationships under the legal radar served them well in terms of rights. Politically, some of my interviewees were averse to the notion of damaging the LGBT marriage equality struggle, which was nascent at the time, by association, and wanted to give their gay and lesbian brothers and sisters their moment in the sun (my later work with Gwendolyn Leachman showed the wisdom of this approach, as well as how poorly it paid off for the poly activists later.) And culturally, many interviewees were averse to the idea that they would have to appeal to the mainstream, to be digested into “normality”, to appear bourgeois, to eschew their interests in sacred sexuality and BDSM, all of which seemed too dear a price to pay for legal recognition.
Studying animal rights activists using the same framework is useful in the sense that the three schemas can reflect attitudes toward a prospective conviction and jail time. Instrumentally, activists may work toward an acquittal in the hopes of preventing conviction and incarceration. Such a victory, whether through a jury acquittal or through an appellate reversal, would be a double win: for the human defendant, who won’t be going to prison, and for the nonhuman animals, if the win will be interpreted as some legal recognition of the value and moral weight of animal suffering (if not an acceptance of a weak or strong theory of animal personhood.)
But short of such an instrumental win, the prospect of incarceration could carry some important political implication. A normative, principled, ideological young person behind bars is a powerful motivator for movements to unite. There are some serious fractures within the animal rights movement, not only regarding strategies and action but also regarding activist styles, dispute resolution, and questions of intersectionality that have arisen in a variety of progressive movements and communities in the last few years. Some of these may heal in the face of a person unjustly incarcerated for bringing animal cruelty to light.
Incarceration also has a powerful cultural symbolism. It creates an important analogy between the animals, for whose conditions incarceration might be even regarded a euphemism, and their human protectors, now behind bars. In my years of studying and advocating about prison conditions, I’ve often heard the conditions described as “like animals.” Since here, helping animals is the point, there is something very powerful about analogizing incarceration. There is also a sense of cultural continuity with other movements for civil rights, particularly with incarcerated nonviolent activists fighting for compassion and equality. This is particularly important for movements building their action program around concept of Kingian nonviolent resistance.
There’s plenty more to say, but this should give you an idea of the project – and now, I’ll get to work!
This morning on Twitter, Shaun King took on the schadenfreude festival that surrounded the reports that Paul Manafort–perhaps the shrewdest collaborator with the Russians in the context of the 2016 election and an unscrupulous white collar crime offender–is going to be in solitary at Rikers. King said:
I see people excited to see Paul Manafort sent to Rikers Island and put in solitary confinement.
1. Rikers Island should be closed down 2. Solitary confinement should be ended.
We must be so principled in our calls for reform that we want them even for our enemies.
I couldn’t agree more. This is one more example of the evils of progressive punitivism, which I discussed in this primer. No matter how many resistance-related hashtags are affixed to these expressions of joy, they are the opposite of revolution; rather than deeply upending the rationales of the punitive state, they consist merely of turning it around 180 degrees. Instead of torturing poor people of darker skin, we’ll torture rich people of lighter skin. This is not reform; it’s tribalism.
I’ve written two pieces on progressive punitivism so far. The first, based on my Not Your Typical Kavanaugh Opinion Piece, shows how some aspects of the #metoo movement feed into the most noxious aspects of progressive punitivism, namely the encouragemenet for people to marinate in victimization as a condition of being heard (forthcoming from JCRED). The second, based on this post, argues that the tendency to demonize everyone involved in failed criminal justice reform (particularly painting well-meaning people as racist) is ahistorical and harmful to the movement overall, and that it is much healthier for both academics and reformers to analyze people on their own terms (forthcoming from LSI). The third piece, which I’m working on now, is for the Punishment and Inequality conference at the University of Bologna. In this piece I try to unpack the intellectual roots of progressive punitivism and come to some surprising conclusions.
It turns out there is very little in the history of conflict and radical criminology that tackles the question, “whatever shall we do with the rich after the revolution?” Admittedly, much of the radical criminology paradigm consists of questioning the connection of crime with class; the oft-quoted maxim from Anatole France’s The Red Lily talks about how ‘[t]he law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.’ To criticize how the law applies to the poor is to implicitly question how it applies to the rich, because criminalization and severity get their meaning from relativity and context. Critical and radical criminologists have highlighted areas in which the rich commit crime with impunity–white collar crime, environmental crime, state crimes, etc.–but save for, say, the post-Enron outrage, there’s been very little to foreshadow the explosion of punitive sentiments on the left that we see today. Perhaps the exception is carceral feminism, which was foreshadowed in Catharine MacKinnon’s writing; she seems to support this aspect of the #metoo movement, opining here that the online outrage and excoriation campaigns we see are an outcome of the incompetence of formal criminal law in addressing sexual harassment. For an even more extreme example of the antecedents of carceral feminism, see this passage from Valerie Solanas’ SCUM manifesto:
SCUM will kill all men who are not in the Men’s Auxiliary of SCUM. Men in the Men’s Auxiliary are those men who are working diligently to eliminate themselves, men who, regardless of their motives, do good, men who are playing pall with SCUM. A few examples of the men in the Men’s Auxiliary are: men who kill men; biological scientists who are working on constructive programs, as opposed to biological warfare; journalists, writers, editors, publishers and producers who disseminate and promote ideas that will lead to the achievement of SCUM’s goals; faggots who, by their shimmering, flaming example, encourage other men to de-man themselves and thereby make themselves relatively inoffensive; men who consistently give things away — money, things, services; men who tell it like it is (so far not one ever has), who put women straight, who reveal the truth about themselves, who give the mindless male females correct sentences to parrot, who tell them a woman’s primary goal in life should be to squash the male sex (to aid men in this endeavor SCUM will conduct Turd Sessions, at which every male present will give a speech beginning with the sentence: `I am a turd, a lowly abject turd’, then proceed to list all the ways in which he is. His reward for doing so will be the opportunity to fraternize after the session for a whole, solid hour with the SCUM who will be present. Nice, clean-living male women will be invited to the sessions to help clarify any doubts and misunderstandings they may have about the male sex; makers and promoters of sex books and movies, etc., who are hastening the day when all that will be shown on the screen will be Suck and Fuck (males, like the rats following the Pied Piper, will be lured by Pussy to their doom, will be overcome and submerged by and will eventually drown in the passive flesh that they are); drug pushers and advocates, who are hastening the dropping out of men.
What does this radical program of punishment, excoriation, required groveling and ceremonial apologies resemble? Unsurprising answer: Communist China’s criminal law. While criminalization, tribunals, and harsh punishment were part and parcel of the cultural revolution, China didn’t actually have an official criminal code until 1979. The Maoist authorities had drafted one, but Mao believed it unwise to codify a criminal law that later might restrain the party. Still, these notions of criminal law as embedded in politics characterized the eventual legislation. As Donald Clarke and James Feinerman argue in Antagonistic Contradictions: Criminal Law and Human Rights in China, the question of what constitutes a crime was nebulous in the criminal code of Communist China, and highly dependent on the perpetrator’s location on the class food chain. As they explain:
The Criminal Law (CL) does not so much define which acts are punishable as prescribe what the sanctions shall be when relatively severe punishments are deemed in order. The definition of crime is accomplished outside the Criminal Law by reference to political exigencies or generally accepted standards of morality. There is little perceived danger in allowing government officials to impose their own standards of morality, since Chinese state ideology does not accept the legitimacy of multiple standards of morality.
Consider, for example, the provision for analogy (Article 79 of the CL): a “crime” not stipulated in the CL (or elsewhere) may be punished according to the most nearly applicable article. This shows that if rules defining crime are “law,” then the very notion of “crime” is not a “legal” concept; the determination of whether a particular act constitutes a crime is something that must take place outside the CL. Thus, while the CL tells you what punishment to apply for a particular crime, it is often unhelpful in determining whether a crime has been committed. In this respect, the CL resembles the rules for punishment of Imperial China, which stipulated any number of punishable acts in great detail, but also contained provisions allowing for analogy and punishing “doing what ought not to be done.”
The Special Part lists various crimes and their punishments. Pride of place goes to counter-revolutionary crimes, which are defined as “all acts endangering the People’s Republic of China committed with the goal of overthrowing the political power of the dictatorship of the proletariat and the socialist system” [but are very rare despite their textual prominence.] . . The other chapters in the Special Part cover crimes of endangering public security, undermining the socialist economic order, infringement of personal and democratic rights, property violation, disruption of the order of social administration, disruption of marriage and the family, and dereliction of duty and corruption.
The Special Part is a relatively skimpy 103 articles. . . One reason for the relative simplicity of the Chinese CL is that the provision on analogy offers an escape hatch in case of imperfect or careless drafting. Another reason is that the CL is supplemented by numerous other pieces of special legislation either specifically criminalizing a certain act or prohibiting an act and providing vaguely that “where it constitutes a crime, criminal responsibility shall be affixed,” without providing any guidance as to under what circumstances the performance of a prohibited act would constitute a crime. Finally, it must be remembered that the CL is as much a political text as a legal one; its drafters were concerned with providing a legal basis for state action, not with worries about due process, and it was designed to be used by judicial and public security cadres with a low educational level. Although the late 1980s and early 1990s have seen a movement among the Chinese legal community to revise the wording of the Criminal Law in an attempt to make it technically more elegant, no revision has yet taken place.
Essentially, what Clarke and Feinerman are describing is a punishment system that relies on the sentiments of the communist order toward the offender to even make the decision whether a crime has been committed. A poor person stole bread? Revolutionary impetus. A rich person stole bread? Class criminal.
One possible (and reasonable) counterargument could be that all criminal codes are, covertly, Maoist “little red books” by virtue of differential enforcement. After all, isn’t a city ordinance that prohibits any person from sitting or lying on a city sidewalk, but yields fines only against poor, homeless people, exactly the same as a “political texts” that “impose [their] own standard of morality”? Well, of course they are. But the difference between these codes and the Maoist criminal code is the difference between covert and overt intent. The Maoist code explicitly declares its intent to focus on counterrevolutionaries.
So what’s worse, a law that purports to criminalize in a neutral, universal way, but is enforced in a way that targets members of a particular class, or a law that explicitly says that it addresses only members of a particular class? There’s something to be said for the latter: at least it’s honest, which means that if we dislike its overt targeting, we can work to change it. Differential enforcement, on the other hand, can work covertly, and remain undetected. But this rationale does not neatly address what happens in the context of progressive punitivism, for two main reasons.
First, the days in which the mainstream public was in the dark about differential enforcement are long gone. The disparities that critical criminologists have been studying for decades–racialized police activity, ideological bias in charging decisions, sentencing disparities for members of different races and classes–are all there in the open. We studied this stuff before it was cool, but now progressive Millennials are born with the Michelle Alexander playbook in hand. They have come of age, politically, against the backdrop of Ferguson; they have been reading excellent journalistic coverage of the criminal justice system and listening to podcasts about miscarriages of justice for years. Honestly, there’s not much difference now, in terms of the progressive consciousness, between laws that explicitly target the poor and laws that are facially egalitarian but differentially enforced. This is good news for criminologists–we’ve wanted everyone to know this forever, and finally, the combination of colleagues with a desire to address the mainstream and journalists who made it accessible has succeeded in injecting the realities of criminal justice administration into the mainstream conversation (this conversation could use a little, or actually a lot, of nuance, but we’ll turn to that later.)
Second, even with an overt policy, there has to be a desire to change it. If lawmakers and constituents are overall pleased with policies that support a particular political order and target people on the basis of their class affiliation, it will be quite difficult to introduce change. Regardless of whether the class/race/gender bias of law is overt or covert, the ability to move it in one direction or the other depends largely upon whether its targets are people that “we” (for whatever value of “we”) like or dislike.
Which leads me to conclude that, even though we can find Maoist, or radical feminist, antecedents to the appetite for punishing the rich/male/white that permeates progressive discourse, its most obvious intellectual and cultural legacy is… conservative discourse.
Conservatives and progressives don’t live on different planets. The American public (as well as the American academic scene) has experienced decades of exposure to punitive ideologies and policies, and these, as well as their legacies, are bound to leave imprints on social movements of all stripes. Criminal justice and punishment scholarship in the United States is steeped in this punitive legacy–and this is characteristic, as Naomi Murakawa, Elizabeth Hinton, and others tell us not only of Nixon and Reagan, but also of Democrat politicians. After all, as Jonathan Simon explains, no politician, of any stripe, wants to be perceived as “soft on crime.”
Decades of being steeped in a program of conservative punitiveness has taught both conservatives and progressives three important lessons. The first is that criminal justice is the only hammer in the toolbox, and therefore each and every problem must be a nail. If that’s how we have been solving the problems of “inner city delinquency” for years, why would we not welcome any bad behavior on the part of the wealthy and privileged with choruses of “lock him up”?
The second lesson is that it is normal to think of criminal justice as a tool for separating communities across identities. I’m sure I tell you nothing new when I remind you that, while 1 in 100 Americans is behind bars, that figure is much higher for particular segments of the American population: 1 in 9 young Black men is incarcerated, and 1 in 3 is under some form of correctional supervision. Racial and class inequalities are found at every turn; in policing, in criminal courtrooms, and in sentencing, to name just a few. Many criminal justice critics, in academia and in the activist realm, treat this overrepresentation not as a coincidence, but rather as part of a systemic project of crystallizing and enhancing inequalities. Is it any wonder that, against a backdrop of “walk all over the poor”, a non-imaginative response is, “walk all over the rich”?
The third lesson, which is perhaps the most painful, is that the quintessential way to get the talking stick in America is to be a victim. Just yesterday we learned that Tricia Meili, the Central Park jogger who was viciously assaulted and left for dead decades ago, is calling for a release of investigation materials in the cases of the Central Park Five, the five teenagers who were falsely accused of assaulting her. We know who did it: the responsible party is in prison, has confessed to the crime, and is tied to it via robust forensic evidence (the only person who is still confused about this is Trump). We have seen footage of the interrogations of the teenagers. Meili is owed compassion and support for her harrowing experiences, as well as admiration for her long recovery process. But why is she an authority on an event she has no memory of? That we award victims an attentive ear on such matters shows how victimization, or more accurately, a spectacle of suffering, is the qualification you need to be an authority on criminal justice in America. #BlackLivesMatter and #metoo have internalized these messages all too well: in the face of victim voices serving the conservative agenda, like the Tate family, Mark Klaas, and Dominick Dunne, is it any wonder that the progressive response is to put victimization and trauma at the forefront of its own struggle?
The problem with these non-imaginative responses, as Shaun King reminds us, is that progressive punitivism is, essentially, a little-changed version of the conservative punitivism playbook. Applauding the incarceration of a reviled man on solitary at Rikers has as much potential for enshrining the practices of solitary, and the conditions at Rikers, as was applauding the incarceration of the people that the progressive movement cares about in identical conditions. We can and should do better than this every day, but that takes imagination, and shaking off the paradigms shaped by decades of criminal injustice doesn’t come easy. Still, we have to try.
It’s been a while since I updated this blog, and it’s time for an update as well as a substantive post. I am hard at work trying to finish the manuscript of Yesterday’s Monsters, my new book, which examines the parole hearings of the Manson Family–and am doing so as the new mom of a (delightful) infant, so my days are packed! In addition, I became interested in a variety of topics beyond California corrections, as this administration provides us daily reminders of how bad things can be if we don’t actively stand guard on our civil rights. Local readers probably know I’ve been appearing on TV and on the radio several times a week discussing immigration reform, the Mueller investigation, various excesses and civil rights abuses, and the possibilities and implications of an impeachment campaign. I also find that my opinions on various issues, ranging from the #metoo cultural moment to state support for parenting, exceed the boundaries of our topic, and am therefore hesitant to share them here. Would love to hear thoughts in the comments.
In the meantime, I received a fascinating email from our reader Nick Jones, who has taken an interest in population counts in CA prisons. As our readers recall, under the Plata decision, CDCR was under obligation to reduce the population in CA prisons to 137.5% capacity, and complied with the order. But things are, apparently, not what they seem.
CDCR publishes its monthly population report here, but the format they use does not allow for any sort of manipulation or statistical testing. Nick very graciously, out of his curiosity and the goodness of his heart, created an online tool to parse out the data, and we now have a .csv file containing the population since 1996, broken down by prison. Nick is offering the file freely to me and you under a digital commons license and you can find it here. Thank you, Nick!
Analyzing the data brought Nick to a disturbing conclusion. Yes, technically the system as a whole is not overcrowded beyond the Plata requirement. But the general number in all prisons combined hardly matters when the very reason for the Plata decision was that it is impossible to provide minimal medical treatment when there’s overcrowding at the individual prison level. And indeed, no less than 15 of California’s 33 correctional institutions are beyond the Plata crowding mandate:
It is interesting to note that among the least crowded prisons (hovering around 100% capacity) are both Pelican Bay and Corcoran, which might be attributed to the Ashker settlement. But does that mean that people who were previously held in the SHU are now held in general population in other institutions? Yes, holding people in solitary is inhumane, but how is holding them in overcrowded facilities a solution?
Alternatively, it might be the case that the 15 overcrowded institutions feature new entries. In which case, why are we so bad at judging where to send people based on capacity? Is there anything distinctive about the geography of the overcrowded prisons? Their security classification? I think this calls for deeper thinking, and will continue to work with the data and reflect on what this means.
If any prisoner rights litigators are reading this post, it seems to me that this result is NOT what the Supreme Court intended when it set the 137.5% upper limit in Plata. If anyone wants to talk about more research on this, and possibly legal recourse on behalf of the folks who are doing time in the top 15, please reach out to me via email.
A couple of weeks ago, a friend sent me an email about a serious heat wave in Corcoran prison. According to inmates’ family members, the temperatures in the cells were unbearable, and many people needed urgent medical attention. Some of us participated in a “phone zap” to the warden’s office, and the mother of one of the inmates received a communication from her son, saying, “I don’t know what you did, but they finally came to check the temperature in my cell.”
This incident is a grim reminder of the unfortunate location of prisons in California in the central valley, which makes them vulnerable to ecological calamity. In the last few years, California towns have been ravaged by fires and floods, and we all rushed to help. But ordinary people, even when threatened by environmental disasters, have a choice: they can pick up a few personal belongings and leave. They can call and demand help. They can sometimes stay with friends. People who are locked up and at the mercy of the state cannot: they are at the mercy of the state. Moreover, inmates and their families are in a bind, as this thread on PrisonTalk shows. People are concerned to speak up, even when their loved ones drip sweat on the letters they send out and can’t concentrate and get hospitalized, because they fear retaliation.
In Cheap on Crime I talk about the shift from perceiving inmates as wards of the state to regarding them as economic burdens or consumers of services. The problem with the “consumer” language is that consumption is normally assumed to be voluntary. When someone pays for a room at a hotel, they do so by choice. When we demand that people pay for sleeping in a jail cell, a choice they did not make, they are not consumers. They are economic hostages.
The state has essentially put its inmates in an impossible situation: On one hand, nothing about their conditions of life is voluntary. On the other hand, all this talk of paying for “services rendered” creates a false equation between their situation and that of and people on the outside. Which means that, when something like the heat wave in Corcoran happens, the quintessential consumer weapon–boycott and complaint–doesn’t work nearly as well as it works on the outside. Put fans in the room, or else? or else, what? The families have no negotiation leverage. We made the phone calls because the situation was untenable, and we knew we were running a risk.
This is why inmate families cannot, and should not, carry all the burden in these situations: people from the outside who have clout and influence must get involved. This is hard, because despite everything that has happened in the last few years, prisons are still like the “other city” in China Mieville’s The City and the City: it’s all around us, and yet we don’t know it’s there. The only coverage I found of the horrible heat wave and its implications was on prison family chatrooms–no one in the mainstream media picked it up. I’ve been working on prison issues in California for more than ten years, and even I would not have known about it had a friend not forwarded me the email from the families. What is it going to take for us to say–as a united front, and regardless of political opinion or criminal justice worldview–that, no matter what bad thing someone might have done twenty-five years ago, we cannot keep a human being in a cage in a 114-degree-heat without providing some form of air conditioning or ventilation? What on earth would be “soft on crime” about saying that?
Getting the prison to care about the heat wave was an important first step. But we absolutely must do better.
This morning on Twitter, Shaun King took on the schadenfreude festival that surrounded the reports that Paul Manafort–perhaps the shrewdest collaborator with the Russians in the context of the 2016 election and an unscrupulous white collar crime offender–is going to be in 