The Prison Guards’ Union: Political Capture, Rot, and Risk

Amidst the cries to make profound changes to our incarceration policies, the silence from CCPOA, the prison guards’ union, has been deafening. While SEIU Local 1000, which represents prison workers, has filed a grievance against CDCR for putting their lives at risk, no such steps have been taken by CCPOA.

But it’s not just silence: When watching the legislative hearing on COVID in prisons, I was struck by the exchange between Assemblymember Ting and the CCHCS doctor who testified about PPE-wearing deficiencies in the prison authority’s COVID-19 plan. Here’s the bit I’ve been ruminating about. When the doctor was asked about the deviations from protocol regarding mask-wearing, which were plastered all over the IG report, he hastened to clarify that he did not doubt the efficacy of masking for preventing infection. Nonetheless, he attributed masking noncompliance in CDCR facilities to the fact that the masks were “thick, hot, hard to breathe.” The doctor explained that we should “extrapolate” what it was like for people on the outside to wear them for part of the day to people who “are expected to wear them 24/7, 365, because they cannot get away by themselves in a closed room with no one else. It’s a heavy lift. The overwhelming majority of patients and staff are doing a good job – they are not being perfect, they are fallible. Our physical plant is not conducive to people complying.”

Finally, the doctor admitted that the missing piece was the “disciplinary component of what we’ll do with folks who are just not willing to comply. That component is being strengthened and it will improve even more.” Ting wondered why this had not been done previously: “You work for Mr. Kelso, and he has fairly broad authority in this realm. why didn’t you use your authority to ensure everyone was wearing a mask?” The doctor insisted that wearing a mask was “not a choice” and that there was a “firm consistent message from secretary and receiver about our expectations about face coverings. I’ve personally been to 14 facilities since July and reminded staff and patients. There’s been a really clear expectation. The part that was not there was a progressive disciplinary process. I guess we hoped that people would do the right thing.”

This hope is extraordinary, given how CCPOA has been investing its time and money. A story in today’s Sac Bee shows that, instead of fighting for union members’ lives and wellbeing by demanding population reductions and preventative measures, or at minimum instructing them that they should wear masks, CCPOA leadership has been busy… politically and financially backing the punitive ballot propositions that lost last week. The article explains:

The prison guards’ union, through its political committees, spent $1 million to support incumbent Los Angeles County District Attorney Jackie Lacey, but she lost to progressive criminal justice reform advocate George Gascon, a former San Francisco district attorney.

It gave $2 million to support Proposition 20, which would have stiffened prison sentences and restricted parole, but the measure is failing by a 24% margin.

And the union spent at least $1 million to support Efren Martinez, a Los Angeles businessman who lost his race against incumbent Democratic Assemblyman Reggie Jones-Sawyer, chairman of the Assembly Public Safety Committee.

The union also backed some winners, potentially including Dave Min, a Democrat who defeated Republican state Sen. John Moorlach of Orange County.

Even my rudimentary math skills suffice to determine we’re talking about more than $4 million in union money, presumably garnered from union fees. And there are two ways to parse what’s going on here, both unsavory.

The more pessimistic one is that a substantial percentage of the rank-and-file correctional officers are virulent Trumpers, conspiracy theorists, or QAanon nutcases. Perhaps they think COVID-19 is a hoax despite the fact that it has infected and sickened thousands of people behind bars and claimed dozens of lives, including one of their own. And if so, perhaps the same virulent Trumpism makes them happy that their member fees were used to support Trumplike regressive, pre-recession criminal justice policies.

The less pessimistic, but still incredibly upsetting, possibility is that CCPOA members are being taken for a ride by Glen Stailey and his own Trumpian methods, which apparently include financing political ads that put bullseyes on legislators. Stailey is apparently interested in “regaining the union’s once-renowned clout in a changed political environment”–as evidenced by his response to the Sac Bee article about the humiliating and expensive campaign losses:

Through a spokesman, Stailey declined an interview request but responded to emailed questions.

“We’re only getting started,” he said in the email. “We want to build our profile as an active participant in policymaking in California, and working on campaigns is one small piece of it.”

In other words, he’s hoping to drag us all to the house of horrors that his predecessors built.

Because I’m not an idiot, I don’t imagine this blog is particularly popular with CCPOA membership. But in the off-chance that you, dear reader, are a correctional officer, my message to you is: WAKE UP. I don’t hate you, I don’t wish bad things for you, I don’t want you to get sick and die. Stailey doesn’t give a fig about your health and work conditions. Your interests and those of the people you guard are the same. None of you wants to get infected with COVID-19. The way to do this is to safely reduce prison population so that everyone can safely distance, and to be rigorous in wearing PPE and washing hands. Look at the protection your non-CO colleagues are getting from SEIU-1000 and ask yourself whether Stailey and his cronies care about you, or whether they’re just taking your money on an expensive trip to the land of political capture.

Prison Workers’ Union Files Grievance; Silence from the Prison Guards’ Union

The union that represents health care workers, clerical staff, custodians and other prison employees, SEIU Local 1000, has filed a wide-ranging grievance against CDCR and CCHCS (the Federal Receiver’s prison health services) for employing them, throughout the state, in unsafe conditions. Megan Cassidy for the San Francisco Chronicle reports:

The grievance, filed July 28, alleges that union officials documented safety violations at all 35 prisons owned and operated by the California Department of Corrections and Rehabilitation, or CDCR.

“Some of these prisons have already had serious COVID-19 outbreaks,” the grievance states. “(Prison and prison health care officials) should still be able to prevent outbreaks if they take all possible and reasonable steps to prevent them.”

The grievance lists numerous violations:

  • Inadequate supply of hand sanitizer machines and disinfecting wipes
  • Common areas at worksite are not being cleaned throughout the day
  • No training received on the state’s COVID-19 health and safety guidelines
  • Employees are not getting notice when someone at your worksite has tested positive for COVID-19
  • Not everyone at institution wears a mask
  • Six foot physical distance is not being maintained at worksite
  • Failure of adequate testing of staff and inmates
  • Transfer of inmates without adequate testing [this pertains to the infamous transfer from Chino, which brought COVID-19 to Quentin and Corcoran–HA]
  • Failure to quarantine or isolate inmates with suspected exposure
  • Failure to maintain adequate internal command or control
  • Failure to provide safety protocols to protect staff from infection
  • Inadequate supplies and types of PPE

The union demands taking the following steps:

  • Take all necessary steps to ensure employee health and safety
  • Ensure that each institution has a COVID-19 incident command center with both medical and custody staff
  • Have a clear written plan for spaces/areas that will be utilized to isolate/quarantine suspected and COVID-19 confirmed inmates at each institution.
  • Ensure that management at all levels understands their responsibilities and role in preventing the further spread of COVID-19.
  • Halt the movement of inmates between prisons and intakes from counties [this is crucial because, as I learned today on Twitter from people on the inside, transfers are scheduled to resume this coming Monday – HA]
  • Ensure that DAI and CCHCS are doing everything possible to maintain six foot physical distance between persons (including allowing all employees possible to telework), providing adequate hand sanitizer and disinfectant wipes and are enforcing that everyone wear masks/or face coverings
  • Ensure that all employees are trained with the latest State of California health and safety guidelines and that all employees are noticed about possible COVID-19 exposure at their worksite.

This was a long time coming; I’m surprised the union is taking these steps only now, but there’s something else that bothers me. In Arthur Conan Doyle’s The Hound of the Baskervilles, Scotland Yard Inspector Gregory asks Sherlock Holmes, “Is there any other point to which you would wish to draw my attention?” Holmes replies, “To the curious incident of the dog in the night-time.” Gregory says, “The dog did nothing in the night-time.” To which Holmes answers, “That was the curious incident.” I bring this up because, if there’s any union that should expected to vociferously defend the interests, safety, and health of its members, it’s the strongest union in California— the CCPOA.

I’ve spent quite a while today on the CCPOA’s website, trying to find a sliver of a reference to COVID-19. Nothing on the front page; nothing under “news and information.” They do take care to mention a study according to which PTSD rates among prison guards rivals that of war veterans and to take pride in a 5% salary raise from 2019, but nothing whatsoever about the obvious. CCPOA guards face as much risk from the virus as the workers represented by SEIU Local 1000; the CDCR reporting system does not distinguish between guards and other staff members. To-date, CDCR reports 1976 COVID-19 cases among staff, as well as eight deaths.

CCPOA is not a particularly timid union. As Josh Page explains in his wonderful book about the union, CCPOA has been at the helm of much of the punitive animus in California, branding itself as a tough-on-crime organization and partnering with (or puppeteering) Crime Victims United of California, with whom CCPOA shares numerous board members. CCPOA and CVU are largely responsible for the public perception of punitivism as natural and ubiquitous, a perception not shared by many survivors of violent crime. And here we have a matter that’s not about fancy penological philosophy, but is actually the bread-and-butter of what a union is supposed to do: protect its members’ health and safety on the job. Instead, here’s what the Sac Bee reports about their salary negotiations with Gov. Newsom:

California correctional officers would take one furlough day per month and defer raises for two years under a proposed agreement their union has negotiated with Gov. Gavin Newsom’s administration.

The California Correctional Peace Officers Association’s two-year agreement appears to be the first deal a state union has reached with the administration over pay cuts Newsom proposed for all state workers to help address a projected $54 billion budget deficit.

The tentative agreement will require a vote from the union’s 26,000 members to pass and will need approval from the Legislature.

The agreement uses a personal leave program to reduce officers’ pay by 4.5% — roughly the equivalent of one day of work per month — for two years. In exchange, the officers receive 12 hours of paid leave per month, the equivalent of one and a half days of work.

A 3% raise the officers were scheduled to receive July 1 is deferred until July 1, 2022.

The agreement would reduce the state’s spending on correctional officers by 8.99%, or about $395 million, according to a cost summary of the agreement. Correctional officers make up a large share of the state’s general fund spending on its workforce, accounting for about a third of general fund payroll spending.

Newsom’s original proposal of two unpaid leave days would have reduced the state’s spending on the group by 9.53%, or about $419 million, according to the summary.

The agreement softens the impact of the cuts on correctional officers’ pocketbooks by suspending a paycheck deduction that funds the health care plans they’ll use in retirement. That change allows workers’ to keep 4% of their paycheck that had been going to future health care costs.

The state also would cover an increase to health insurance costs of .54 percent, according to the summary.

The deal would suspend holiday pay for seven of the 11 state holidays, eliminate one personal development day for the term of the agreement, suspend night and weekend differentials and make other tweaks to pay.

This is not great for CCPOA, though it does somewhat soften the blow of the salary cuts. But how could CCPOA negotiate with the Governor, amidst a pandemic, and not mention their working conditions, even in passing?

The curious thing about the guards’ COVID-19 interests is that the best thing that can be done for them, which is, obviously, mass releases to allow for social distancing and minimally competent healthcare, stands in opposition to what their leadership has advocated for in the last forty years. CCPOA built its power advocating for more and longer prison sentences, getting its political cache from being “the toughest beat” and from the sheer enormity of the California correctional apparatus. But this does not necessarily reflect the rational self-interest of its members, which even in ordinary times would find it safer and easier to wrangle and supervise fewer people in a less crowded facility. In that respect, the virus is not so much reversing the interests of the guards as it is putting them in clearer focus. And if this is the case, then it seems that CCPOA is not really representing its members properly, and we’re seeing a pretty dire example of political capture.

Triggers and Vulnerabilities: Why Prisons Are Uniquely Vulnerable to COVID-19 and What To Do About It

covid-19 virus illustration
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.

Bernanke’s distinction between triggers and vulnerabilities is useful to the current crisis as well. Today we learned that a man behind bars in Chino is the first acknowledged COVID-19 casualty in CA prisons, and that 59 of his fellow prisoners have tested positive. As of today, we’ve also seen the first positive test in the San Francisco jail system. It’s all going to mushroom from here.
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:
  1. We still have a bloated system, because the Court used the wrong standard to create minimal space between people for their immediate welfare.
  2. We’re now dealing with lots of small systems that answer to lots of different masters and have different priorities and ideologies.
  3. 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.
  4. 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.

Body-Worn Cameras in Prison?

I just got off the phone with a person who is serving a long sentence in a CA prison (I will keep the person’s details to myself to preserve their anonymity.) The person heard my KPFA interview about Yesterday’s Monsters and some of the reforms I suggested resonated with them. They had some reform ideas of their own, which struck me as interesting and important, and I promised them I would float them to the criminal justice reform community, and here’s the most obvious and interesting one: Why not require that correctional personnel wear body-worn cameras in prison?

It’s certainly an idea whose time has come; I’ve looked at a few correctional gear websites and the technology exists. Problems with privacy and technology quality now have solutions. More importantly, everybody wins. I think it’s an easy sell to the correctional community: look at this CorrectionsOne article from 2014, before the technology became ubiquitous in police departments around the country. Prison guards might be well served to rely on the proven effects of the technology in improving the behavior of the incarcerated people they interact with, as well as addressing false accusations of brutality and avoiding lengthy and costly litigation. Incarcerated folks could use them to pursue redress in cases of physical or sexual assault. Moreover, footage captured in the course of an incident leading to a disciplinary write-up (115/128 in CA) could be used to explain the circumstances of the write-up to the prison authorities and/or to the parole board. In short, everyone wins. 
The privacy concerns that are often raised in the context of police-worn cameras are largely mitigated in a prison environment. Prisons are already equipped with cameras (apparently woefully antiquated ones compared to the capabilities we have now) and people do not have what the law recognizes as a reasoanble expectation of privacy in prison (e.g., Samson, Florence). 
Cops, Cameras, and CrisisAili Malm and Mike White have a wonderful new book out about body-worn cameras for police officers. They review the scientific evidence we have on the impact of body-worn cameras on policing quality, use of force by and against the police, behavior toward the police, complaints (true and false), etc., and offer some helpful policy guidelines for how to regulate the use of cameras. The thorniest issue, I think, is how the footage gets used. Prisons would require careful regulation of the footage use and access to it–even more so than in the police context, because the access to technology to see, let alone use, the footage is so asymmetric. But that something is difficult doesn’t mean it should not be done. If it’s something that is likely to improve behavior in prisons and prevent violence and abuse, it should be in everyone’s benefit to implement it. 
I’d like to hear from you, readers, what you think about this idea. What do we know about current camera coverage of prisons? What gaps are there in the factual accounts of narratives about encounters between prisoners and guards that cameras could fill? How much would it cost to fit the entire correctional staff at CDCR with cameras and to process and store the footage on the cloud? Most importantly, are there any drawbacks to this idea that my correspondent or I might not have thought about?

Distress Call: Suicide Rates in California Prisons

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?

Three Jail Guards Arrested in Santa Clara Jail Inmate Death

The shift of numerous inmates from state prisons to county jails has turned our attention to conditions in these local institutions. This morning’s news present a particularly tragic example: the brutal killing of 31-year-old Michael Tyree, an inmate at the Santa Clara jail, who was beaten to death by three guards. The San Jose Mercury reports:

The three guards at Santa Clara County Main Jail were only supposed to be conducting a routine search of Michael Tyree’s cell, looking for extra clothing or toiletries that inmates often try to hoard. Instead, the correctional officers did something “violent and cowardly,” Sheriff Laurie Smith said Thursday, that left the 31-year-old mentally ill man lying naked on the floor, covered in lacerations and bruises and bleeding to death internally.

During a news conference Thursday, flanked by 18 uniformed members of her command staff, Smith announced the arrest of the three correctional officers on suspicion of murder, just a week after Tyree’s severely beaten body was found in jail wing 6B.

“The disappointment and disgust I feel cannot be overstated,” she said. “His life had value.”

The murder allegations against correctional officers 28-year-old Jereh Lubrin, and 27-year-olds Matthew Farris and Rafael Rodriguez, unprecedented in the 165-year history of the Sheriff’s Office, have put the jail it runs under a harsh spotlight and drawn attention to the difficult plight and placement of the mentally ill.

Smith said she spoke privately with Tyree’s family, just hours after the arrests.

“I want to express my profound sorrow over the loss of Mr. Tyree,” Smith said, accusing her officers of losing their “moral compass.”

“This violent and cowardly act that took Mr. Tyree’s life is not indicative of the values we expect and honor with the men and women of this department.”

The murder allegations may be unprecedented, but other problems in the Santa Clara jail, and particularly violent behavior on the part of the guards, are not. In 2014, the jail observer reported that “the guards run the jail” and that numerous calls and complaints pertain to guard behavior.

The sheriff is to be commended for arresting the responsible guards–and if the system works properly, this should be no different than any other brutal homicide trial–but the county’s liability largely depends on the extent to which it was negligent in hiring, training, and supervising its staff.

How the Media Talks About Prison Homicide: A Murder in Vacaville

A couple of months ago, news outlets reported a murder in California State Prison, Solano. The murder did not make headlines until yesterday, when it suddenly returned to the news with some gruesome details and discoveries.

Beyond the sadness and horror (and, of course, condolences to Maria Rodriguez and her family), one has to wonder, again, about the media tendency to look for an “angle”. It’s fairly obvious that the story got a second life once media outlets found out (two months late) the horrific details of this heinous crime. But the Associated Press cannot resist looking for an “angle”–some way to generalize from this and make it into a moral panic we can all get behind–and here’s what it finds notable:

Homicides are distressingly common in California prisons. More than 160 inmates have been killed in the last 15 years, and the state has one of the nation’s highest inmate homicide rates.

. . . 

 “It’s very difficult to cover every contingency with the limited staff that we have,” said Chuck Alexander, president of the California Correctional Peace Officers Association that represents most prison guards.

   “This kind of thing at Solano, sad to say I predict it’s just a precursor,” he said. 

   He noted a 2011 California law that keeps lower-level offenders in county jails, leaving state prisons to hold the most violent criminals. Changes in prison policies, meanwhile, mean more dangerous offenders are being housed in lower-security prisons like medium-security. 

If you’re a critical news consumer, this ought to leave you wondering: does California have a particularly violent prison population? and, if so, is this somehow attributable to the Realignment? to “changes in prison policies”?

The Bureau of Justice Statistics routinely collects information on inmate deaths in federal, state, and local custody. In this report, which covers the years 2001-2012, California is reported to have a yearly average of eight inmate homicides per 100,000 inmates. This number includes not only homicides by inmates, but also by staff (sadly, the numbers don’t offer the breakdown.) Two things are notable about this number: first, it is not at all an outlier among other states. That honor falls to Oklahoma, with 14 per 100,000 homicides, or to Maryland, with 11 per 100,000 homicides. Just to show the number in context: Hawaii has had an average of 6; New Mexico and Tennessee, 9 each; Maine, 8; and Colorado, 6.

Second, it is not grossly out of proportion to the overall homicide rate in California, whose annual homicide rates for the years 1996-2013 veered between 9 and 5 homicides per 100,000 people. Of course, as is the case in the country in general, it was a downward slope; the prison data are presented in a way that makes it impossible to figure out if they’ve also had a downward slope.

It seems like the presentation of data in the article (160 homicides per 15 years) does not suggest anything particularly violent about California prisons as compared with the outside population or with other states.

But let’s turn to Alexander’s remarks. Would more homicides be prevented if there were more guards? Since the BJS data do not provide the breakdown between staff and inmate perpetrators, it’s hard to tell. If the former accounts for a considerable number of the homicides, perhaps the relationship between number of guards and number of homicides should give us pause about hiring more.

The coup-de-grace, though, is the bizarre mention of Realignment and “changing prison policies”. I assume by the latter Alexander does not refer to Prop 47, which was approved only in November, and therefore could not have affected the numbers in any way. As to Realignment, as the article correctly mentioned, it was a policy that focused on non-serious, nonviolent, nonsexual offenders, who were moved out of the prison system (according to a new study by Julie Gerlinger and Susan Turner, people who commit less serious offenses are not necessarily less risky or less likely to recidivate; they’re just less likely to create public uproar when released). What sort of effect could it have had on homicide rates? Is there any evidence whatsoever that prison homicide rates have risen in the aftermath of Realignment? Is there any evidence whatsoever that the increased rate is that of homicide perpetrated by inmates, rather than by staff? I confess I’d be surprised if that were the case; one of the effects of Realignment was alleviating the massive overcrowding in California prisons was alleviated, so one possible factor in prison violence rates has actually been addressed. At a conference last year, Ryan Patten presented a paper that suggested that Realignment actually brought a rise in violence in local jails (as opposed to prisons), but I remember not being convinced that this correlation was not marred by confounding variables. Moreover, Patten didn’t have a breakdown by perpetrator, either. In short, absent any actual data, it’s hard to give credence to Alexander’s assessment.

Here are three alternative suggestions for “angles” that might actually have something to do with prison homicide rate:

Bad cellmate choices. Just recently, CDCR refused to consider the possibility of taking inmate preference into account when allowing them to choose cellmates. Of course, there is no data about how many homicides are perpetrated by cellmates, but that would be one interesting thing to find out. Why resist a simple compatibility survey when it could save lives?

An overall unsalubrious environment. For 11 of the 15 years mentioned, inmates lived under horrific conditions that included overcrowding, massive medical neglect, and a whole host of iatrogenic diseases. There’s still plenty to do on that front. Maybe this is a “broken windows” type of situation, in which people who are horrifically treated conform to the institution’s conditions and expectations.

Staff violence. Just recently, the Supreme Court decided Kingsley v. Hendrickson, which requires a legal objective test to assess excess violence toward pretrial detainees. The Court also left the door open as to the possibility of applying this test to prison inmates, too. I, for one, would have liked to see the breakdown between staff and inmate perpetrators and learn more about the source of prison violence.

I would have liked to see an article discussing prison violence from these perspectives, rather than throwing out conjunction and statistical inaccuracy, and presenting prison violence as merely a subset of overall violence. But I’m not holding my breath.

Corporal Punishment for the Mentally Ill? Judge Karlton to Decide

Two shocking videos depicting prison guards at Corcoran subduing mentally-ill inmates with pepper spray and batons are the subject of federal litigation aimed at ending such brutal corporal punishment. The videos are not available for sharing online, but they have been viewed in court, and the Sacramento Bee describes their content:

In the first video, played to a hushed crowd of lawyers and reporters in Karlton’s 15th-floor courtroom in downtown Sacramento, an inmate in a mental health crisis unit at Corcoran State Prison is shown refusing to take medication from a psychologist visiting him in his cell.

“He refused to take it,” the psychologist tells a waiting team of guards wearing gas masks, helmets, padded vests, gloves, protective jumpsuits and shin guards.

The inmate, locked in his cell, was playing with his feces and threatening to throw two cups of an unknown substance on anyone who entered. Almost immediately after the psychologist emerged, the team began pumping pepper spray through the food port of the metal cell door, repeatedly dousing the inmate between warnings that he better come out.

The team opened the door, dragging the inmate out and wrestling him to the floor as he alternately sobbed and screamed, “Don’t do this to me,” “help,” and “I don’t want to be executed.”

The motion focuses on Eighth Amendment and Fourteenth Amendment violations, including force against inmates manifesting symptoms of mental illness, excessive use of pepper spray and of expandable batons, and requests that the Court order CDCR to revise their use-of-force policies to provide training, quality and assurance processes.

As Bakersfield Now reports, things have not been looking good for the state in court:

In its response brief, CDCR argues that it has a comprehensive use-of-force policy, revised in 2010, that takes into account mentally ill inmates and includes appropriate training and discipline provisions. The brief also argues that the high standard for intervention under the Prison Litigation Reform Act (PLRA) has not been met. The two videos, the defendants argue, do not demonstrate a “pattern or practice” of disproportionate force.

The state’s own expert witness testified that guards use pepper spray far too often and in quantities that are too great. He also said previous recommendations for changes were rejected or ignored.

The Contra Costa Times quoted Michael Stainer, Director of CDCR’s Division of Adult Institutions, who described the depicted incidents as “at best, controlled chaos.”

Judge Karlton is to issue his decision in a few days.

California Prison Overcrowding: State of the State, October 2013

And now, this is how things stood: the cat was sitting on one branch, the bird on another… not too close to the cat… and the wolf walked around and around the tree looking at them with greedy eyes.

                                                                           –Sergei Prokofiev, Peter and the Wolf (1936)

Developments in the last few months raise grim questions about the wisdom of leaving California to its own devices in trying to solve its overcrowding problem. Since the initial three-judge panel order in Plata v. Schwarzenengger (2009), the state has fought tooth and nail against the order to reduce population, and the struggle against the court mandate continued even after the Supreme Court confirmed the order, 5-4, in Brown v. Plata (2011). Numerous state appeals and motions to change the order and delay the timeline for population reduction (some of them bordering on contempt of court) have been thwarted. The last of these is the Supreme Court’s rejection of the state’s appeal yesterday. The Chron reports:

The high court’s one-line dismissal – which said only that the court lacked jurisdiction to step in – leaves intact a three-judge federal panel’s directive to the state to slash its population of 120,000 inmates in 33 prisons.

. . . 

Brown has been fighting for years the prospect of releasing some prisoners early, saying he was worried it could increase crime. Advocates and attorneys for prisoners have pushed for reforms in sentencing that they say would safely shrink the prison system.

Through a spokeswoman, Brown referred Tuesday to a statement released by California Department of Corrections and Rehabilitation spokeswoman Deborah Hoffman, which said officials were “disappointed the state’s case won’t be heard.”

But this rejection is far from being the big victory that inmate rights advocates are seeking. The original order in Plata was to reduce overcrowding in prison to 137.5% capacity, but it famously left it up to the state to find the means to do so. Moreover, Justice Kennedy’s celebrated opinion of the court in 2011 explicitly stated that one way of doing so could be via more prison construction. In 2011, activists and advocates felt comfortable in the knowledge that prison construction was impossible; the state was broke and public sentiment was that correctional expenditures were already excessive, to the point that former Governor Schwarzenegger suggested enacting a law that would prohibit correctional expenditures to exceed educational expenditures. It now, however, appears that “the money is there” to start privatizing California’s prisons en mass, via lucrative contracts with Correctional Corporation of America and the GEO Group.

California never had dealings with private prison providers on its own soil, though it did send 10,000 of its inmates to CCA institutions out of state and was a significant source of income for the company. This was not because of some principled objection to privatization; rather, it was because the California Correctional Peace Officer Association (CCPOA) actively resisted privatization out of concern for the guards’ employment. As Josh Page reveals in The Toughest Beat, CCPOA is so powerful in California that even a prison built in CA by CCA entirely on speculation was left empty. But these difficulties have been resolved: Governor Brown, historically a good friend and ally of the prison guards union, has promised them that they would be employed in these newly-constructed private prisons. This promise made old enemies – state prison guards and private prison providers – into allies, and sealed the deal toward a projected expenditure of $315 million of my money and yours on prison construction.

Obviously CCA is laughing all the way to the bank – a rare and enviable position for a corporation at the end of a recession and during a government shutdown. Here’s how this lucrative contract looks from Tennessee, home of CCA. The Nashville post reports:

The lease agreement between CCA and the California Department of Corrections and Rehabilitation calls for the state — which is under a court order to reduce overcrowding in its jails — to pay Nashville-based CCA $28.5 million per year starting Dec. 1. If the two sides agree to two-year extensions after three years, the rent will begin to increase gradually. CCA also has committed to spending $10 million on improvements at its 2,304-bed California City Correctional Center; renovations beyond that will be paid for by California.

“We appreciate the opportunity to expand upon our longstanding relationship with the CDCR and the state of California,” said CCA CEO Damon Hininger. “Our ability to react quickly to our partners’ needs with innovative solutions that make the best use of taxpayer dollars exemplifies the flexibility that CCA is able to provide.”

In conjunction with its California contract news — which had been expected since August — Hininger and his team also said CCA’s fourth-quarter profits will be hurt by a number of factors, including the spending needed to reopen its California City complex. Among them: Lower inmate counts related to its contracts with the U.S. Marshals Service and Immigration and Customs Enforcement agency, which are believed to be “due to the furlough of government employees and other consequences of the federal government shutdown.”

On top of that, CCA’s leadership has begun spending money to prepare vacant prisons in anticipation of more business from California late this year. The total impact of those factors on Q4 numbers isn’t yet clear, the company said. Analysts are expecting the company to earn 49 cents per share during the fourth quarter.

Investors chose to put more emphasis on the new California cash that will start arriving in December. As of about 1:35 p.m., shares of CCA (Ticker: CXW) were up about 1.5 percent to $35.81, putting them back in positive territory for the year.

If you’re still capable of keeping your breakfast down, you didn’t read carefully enough.

Governor Brown essentially put the ball in the hands of the federal courts, by saying – if you don’t give us some time to cope with the expected releases, we’ll have to recur to privatization and high-expense construction. This option was produced, as if out of a magician’s hat, in the height of the California Criminal Justice Realignment, which presumably redistributes overcrowding and internalizes its expenses by making counties, who are responsible for charging and sentencing, think about incarceration alternatives and manage their own convict population. One has to wonder what good this experiment is if, suddenly, we’re building private prisons in three counties and contributing $28.5 million per annum, to the foreseeable future and beyond, to CCA’s bottom line.

We will continue following up on developments and reporting as we have for the last five years.

Props to David Takacs and to Jim Parker.

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.

Props to David Greenberg for bringing this to my attention.