The Unbearable Lightness of Tasing


Avid followers of the Mehserle trial for the fatal shooting of Oscar Grant at the Fruitvale BART station may recall that his defense consisted of a mistake: Mehserle argued — and the jury believed him — that he had intended to use his taser, not his gun, on Grant. This defense argument places an emphasis on the taser as an instrument aimed to minimize the usage of more harmful force. However, we may ask ourselves whether adding this option to the array of devices available hasn’t simply escalated law enforcement’s response to violations and disorder, without diminishing the number of cases in which guns are used.

The latest installment with regard to these “lesser” devices comes from an NPR story about the usage of zapping devices at the Pitchess Detention Center north of Los Angeles.

“You know when they set their phasers to stun, they did that so they didn’t kill people? Well, that’s exactly what this is. It does stun you,” says Mike Booen, a vice president of Raytheon Missile Systems. The company built the device for the Los Angeles County Jail, a scaled-down version of what it designed for the military.

“I don’t care if you’re the meanest, toughest person in the world,” he says, “this will get your attention and make your brain focus on making it stop, rather than doing whatever you were planning on doing.”

Riots are nothing new at this jail. The Pitchess Detention Center has a history of bloody inmate violence. In fact, the latest brawl between 200 inmates broke out two days after the Raytheon device was unveiled.

Dave Judge, the operation deputy for the sheriff’s department, says the machine is more effective than their usual methods of firing rubber bullets and tear gas grenades.

“This is tame; this is mild,” Judge says.” This is a great way to intervene without causing any harm. The nice thing about this is it allows you to intervene at a distance.”

With the remote-controlled device, he says, guards can focus on specific targets using a monitor and a joystick.

Whenever new techniques for order maintenance are introduced, the question is whether they might substitute the usage of lethal or otherwise harmful force, or substitute the usage of lesser options. If this is to be empirically assessed, what we need is to examine a number of incidents and count the frequency in which guns, tasers, and less intrusive techniques were used. Calculating the percentages would not be a perfect measure, because each riot and situation is somewhat different; but it would provide us with some measure as to whether the introduction of tasers is ameliorating, or exacerbating, the use of force in the detention context.

Props to Colin Wood for alerting me to the story.

Narrow Coalitions? CCPOA’s Blueprint for Prison Reform

The CCPOA website features, these days, their statement on prison reform. Prison activists might find, to their possible surprise, that there are some issues on which a narrow coalition can be formed. Granted, CCPOA supports building more prisons under AB900, but they are also staunch supporters of a sentencing commission, strongly support parole reform, and bemoan the lack of rehabilitation programs in prison. The document makes for an interesting read.

Kristof on Humanity

In case you missed Nicholas Kristof’s column in the 1/27/10 New York Times, it’s right here. Kristof relates statistics and instances of violence in prisons, especially sexual violence, especially in juvenile prisons, especially by prison guards. “I’ve never written about the horrors that unfold in American prisons — especially juvenile correctional facilities — on a far larger scale than at Guantánamo.”

Of course, it is a premise of this blog that our prisons are in a financial crisis. But as Kristof indirectly recognizes, sometimes the economic angle lets me temporarily forget the human angle. Rights that we can often take for granted in this country, including physical safety, are daily struggles frequently lost in our prisons. The real human costs of our failing correctional institutions are sickeningly deplorable, and prison reform will always be about more than money.

Netherlands Closing Prisons

The Netherlands is closing 8 prisons, eliminating 1,200 corrections jobs — — due to declining crime rates(!) and the economic crisis.

If crime continues to decline, the nation will have to choose between closing even more prisons, versus housing imported Belgian prisoners. California is to Belgium as Arizona is to the Netherlands?!

Guard-to-Inmate-Ratios: The View from CCPOA

In the new issue of Peacekeeper, Mike Jimenez, President of CCPOA, discusses prison guard pay cuts and furloughs on the CCPOA website.

As individuals we have a role in the effects of our zeal for our work place. We also have a role in the determination of our own morale. In accepting these responsibilities, we need and respect leaders who have the courage to tell us when things are tough, that we will have to sacrifice and that these difficulties may last for awhile. Leadership requires in these instances that the boss be consistent in the application of cost-cutting measures. It requires that there be a sense of purpose toward a common goal and that the goal be attainable.

We have yet to see these qualities in this administration-so, as the old CDCR saying goes: Expect the beatings to continue until morale improves.

The CCPOA is very critical of the furlough policy, and cites to this Senate report, suggesting that furloughs will not yield real savings for the state. As the report argues, in “round-the-clock” institutions, workers aren’t really taking furloughs, and when they are, labor costs are simply pushed to future years. Other articles on the website raise concern regarding violent incidents due to understaffing.

However, the piece I found most interesting was this critique of overcrowding by Kevin Raymond. A correctional sergeant, Raymond discusses overcrowding from the guards’ perspective, arguing that safety considerations have made the situation untenable. He discusses the National Institute of Corrections’ “direct supervision” principles, which stand in contrast to the classic “warehouse ’em” rationale, but actually do not contradict prison safety. Rather, they promote it.

The principles dictate that staff must know the inmate population and what is transpiring on their turf. You’ll note that under these principles the prison belongs to the staff not the inmates–a novel idea.

However, before the principles of direct supervision can effectively be put into play, a few very important things must transpire. Management, supervisors, and line staff all must be willing to admit that what we are doing now is a huge failure. California’s recidivism rate makes this abundantly clear. And all must be willing to embrace the change in the mindset. More important, there has to be a reduction in the inmate population without a commensurate reduction in staffing levels.

Raymond moves on to discuss the modeling of juvenile institutions after the successful Missouri model, and the failure to achieve similar results because of overcrowding. He is even more pessimistic about the adult institutions: “The adult side of the house has been reducing actual inmate programs for years, settling on a few time-honored favorites, such as substance abuse training.”

The bottom line is quite simple–prison overcrowding is a killer to any real inmate rehabilitation. As well, the current conditions in CDCR’s institutions provide for inmates to do nothing more than scheme and plot their illegal activities and disruptions. It is time for both a change in conditions and a change in attitudes. And the principles of direct supervision are critical tools in a corrections toolbox that, unfortunately, currently sits unopened.

The question is, therefore, whether CCPOA will relegate its efforts to the fight against pay cuts and furloughs, or whether it will expand horizons to fight the other side of the guard-to-inmate ratio.

Judge Broussard-Boyd: Prison Guards’ Layoff Appeals are Premature

The intent to fire thousands of prison guards is very bad news for CCPOA, and the organization is fighting back. However, it seems that the fight, while enthusiastic, is a bit premature.

The judge’s response (attached verbatim in Chuck Alexander’s memo on the CCPOA website) is that “. . . your layoff notification must provide a specific date of layoff to be effective and confer the appropriate appeal rights”.

It seems that many of the proposed measures for cuts in CDCR budget have not yet come to fruition, and we are all collectively waiting for the other shoe to drop.

CCPOA Fights the Layoffs Using a Public Opinion Poll

In order to fight the 3,600 anticipated job cuts, CCPOA launches a statewide poll, whose findings they present on their website. They report that “[w]hile some recent polls have found initial support for cuts, our poll probed deeper to learn that voters want to cut the fat, not the muscle.”

Among their findings, as cited from the poll:

  • 54% do not want to cut the pay and benefits for correctional officers
  • 65% do not want to lay off correctional officers
  • 62% support reducing the growth of administration costs in corrections
  • 63% support eliminating the 400 planners hired under the Governor’s doomed prison reform legislation who have been spending millions planning for prisons that have not been built nor will they be built for decades

The poll, while representing CCPOA’s mobilization (and understandable desperation) to fight the cuts, seems to have been framed and conducted in a way that undermines any conclusions to be drawn from the results. I am unclear on whether the quotes above the pie charts in the diagrams are the questions asked on the poll. If they are, they have been articulated in a non-neutral way that has probably contributed to yielding these particular results (““California has one of the worst inmate to correctional officer ratios in the nation. Laying off officers in our prisons will make prisons more violent and will increase the number of assaults on the remaining officers. We should not cut the number of officers in our prisons as a way to save money.”) Also, it doesn’t seem to be the case that respondents have been offered the choice of other cuts, such as rehabilitative programs, parole, or re-entry. As much of the new research on public punitiveness suggests, when the public is offered such options, it becomes far less punitive. Read all about it in this fabulous book, edited by Julian Roberts et al. This sort of research needs to be done carefully and thoughtfully, and I would encourage lawmakers in Sacramento not to take this particular poll results seriously when making decisions regarding the budget cuts. There may be excellent reasons not to lay off so many prison guards, but this poll is not one of them.

The Ninth Circuit Rules: A Male Prisoner Can Be Searched by Female Guards

On May 18, the Ninth Circuit issued a majority opinion allowing female guards to perform strip searches on male inmates.

The petitioner, William Byrd, a pretrial detainee in jail at the time, was searched for contraband. He and other inmates stood in front of a row of Academy cadets, some of whom were female. Someone in the room held a handheld camera (filming, as it turns out, for the cadets’ Video Yearbook, though no footage of this particular search survived). The majority opinion, by Judge Ikuta, describes the search, which followed county regulatons, as follows:

When it was Byrd’s turn, the officers ordered Byrd to walk over to the cadets, stand facing away from them, raise his arms above his head, and spread his legs. O’Connell approached Byrd from behind and conducted the search as follows: She ran her hands across the waistband of Byrd’sboxer shorts and pulled the waistband out a few inches to check for anything hidden or taped inside; she did not look into his boxer shorts. She lightly frisked over his boxer shorts and down the outside of his thigh, stopping at the bottom of the shorts. Through the boxer shorts, O’Connell moved Byrd’s scrotum and penis with the back of her hand in order to frisk his groin, applying light pressure to feel for contraband. She then placed her hand at the bottom of his buttocks, ran it upward over his boxers, and separated the cheeks to search for any contraband taped, placed, or hidden inside.

Byrd’s legal argument was based on his Fourth Amendment rights to be free from unreasonable searches and seasures, as well as his Fourteenth Amendment rights to due process and equal protection. The search, he argued, caused him unnecessary pain and humiliation.

Byrd’s 1983 equal protection suit was dismissed, since “he fatally ‘failed to allege that defendants’ acts or omissions were motivated by discriminatory animus toward’ male prisoners”. His Fourteenth Amendment argument was rejected, since the search was not proven to have been motivated by punitive intent. The search was thus distinguished from the intrusive searches that the 9th Circuit had struck down in Jordan v. Gardner, 986 F.2d 1521 (9th Cir. 1993), where male guards performed searches on female inmates.

As to the Fourth Amendment argument, the Court builds on Bell v. Wolfish, according to which “when reviewing conditions and restrictions placed on prisoners and pretrial detainees, we must bear in mind the inherent difficulties in managing a detention facility, and that “the problems that arise in the day-to-day operation of a corrections facility are not susceptible of easy solutions'”. Therefore, “the ‘reasonableness of a particular search is determined
by reference to the prison context.’” The factors in Bell and Turner require the court to take into account the circumstances of the search (measuring the level of intrusiveness), the justification for the search, and the existence of alternatives.

Applying these factors to the current situation, the court explains that cross-gender searches, per se, are not unreasonable: “while we have not foreclosed the possibility that a cross-gender
search could violate an incarcerated person’s constitutional rights, we have noted that ‘our prior case law suggests that prisoners’ legitimate expectations of bodily privacy from persons of the opposite sex are extremely limited.’ . . . We have never held that a cross-gender search in a prison setting [in itself–H.A.] violated an inmate’s Fourth Amendment rights”. Beyond the cross-gender search aspect, the court did not find factors that would make the search unreasonable: “As noted, the jury found that the search was not done in an inappropriate manner. The record indicates that O’Connell wore gloves at all times, and conducted the search professionally and swiftly, finishing in, at most, 60 seconds. The invasion of Byrd’s bodily privacy in this case does not substantially exceed the cross-gender observations and searches we upheld in Michenfelderand Grummet. Moreover, the County has provided a legitimate justification for the cross-gender aspect of the search: the County adduced undisputed evidence that the cross-gender search was justified by its legitimate security and staffing needs, focusing primarily on the shortage of adequate personnel.”

Judge Fernandez dissented from the Fourth Amendment aspect of the opinion, writing: “In my view, cross-gender strip searches are generally uncalled for and unreasonable. . . There may be emergency or other situations where a cross-gender strip search is proper, but this case presents no facts to suggest that there was an emergency or some other unique reason for authorizing the search. In fact, the record shows that this sort of search is a regular part of the
jail’s routine, and that there were plenty of men available, who could have conducted the search. . . When all is said and done, I would not think it was reasonable for males to strip search females in this kind of situation, and I do not think it was reasonable to have females strip search males. If our law does approve of it, and the majority opinion cogently reasons that it does, I reluct; the law should change”.

This case brings up a whole host of interesting issues. The first one has to do with the role of women in law enforcement. The gender segregation of prisons, and its implications to gender-segregated prison staff, is well documented in Dana Britton’s At Work in the Iron Cage. While the work performed by men and women in these settings is similar, there are social forces and stereotypes at work that generate gender inequalities in this particular work environment. The majority opinion seems to be marginally sensitive to this issue, when it says “The determination sought by Byrd, that it is per se unreasonable for a female officer to conduct searches of male inmates when male officers are also present, would significantly limit the usefulness of female officers for meeting a detention facility’s security needs.”

The interesting bit, of course, is that these needs to make the workplace an equal playing field, and to allow female guards to perform their work except when there are particular circumstances that disallow identical performance for justified reasons, severely clash with the patriarchal norms that govern much of the inmates’ and guards’ cultural lives. It is interesting to note, in this context, the double standard regarding the unfortunate fact that many inmates have a history of sexual victimization. In this case, “Byrd states that he suffers from a history of sexual abuse, and therefore the cross-gender aspect of the search was particularly traumatic.” However, in Jordan, the same Court struck down searches of female inmates by male guards, “in light of substantial evidence that many of the female inmates had been violently sexually abused prior to their incarceration and were psychologically fragile, and that the cross-gender searches would cause some inmates substantial suffering.” This brings up a whole host of questions regarding the role of patriarchy and gender in our sensitivity to issues of sexual abuse.

Finally, as in many other Fourth Amendment cases, this case brings out the question of measuring the “reasonability” of searches and seizures. Part of the court’s decision, it seems to me, stems from the fact that they place much more weight on the issue of justification for the search than on issues of proportion and intrusiveness. More generally, one serious problem with Fourth Amendment Analysis is its lesser attention to issues beyond the level of suspicion. If anyone is interested in any of this, Dan Portman and I have written a piece on this, which we call Inequitable Enforcement, which will be presented at the Law and Society Association Annual Meeting next weekend; we’ll post it on SSRN at some point next month, and if there’s interest, I’m happy to post the link then.

Released Inmates Might Commit “Sensational Crimes”?

I strongly recommend reading the commentary on Larry Corcoran’s panicked words on the Chron yesterday, from the good folks over at the Prison Movement Blog. Just to whet your appetite, Corcoran, spokesman for CCPOA, said yesterday:

“This short-term savings is going to have long-term costs, and the costs will be measured, unfortunately, in lives. . . I anticipate some incredibly sensational crime committed by an individual that should have been incarcerated.”

Now, granted, I entirely agree that mass releases are a very bad short-term solution for a big problem. Releasing people without skills or support programs into an abysmal job market is an extremely faulty strategy. Nevertheless, one would hope that the mass-released folks would not be the ones committing “sensational crimes”, nor is it ever a good idea to focus on those as the catalysts of public policy. Our pals at Prison Movement dissect this better than I could, pointing out inaccuracies, lack of logic, and moral hysteria, but I’ll just add this: at a time when public opinion is probably swaying away from moral panics toward cost-benefit analysis, I doubt this will win many hearts. Corcoran may be speaking the language of yesterday to an audience facing today’s budget shortages.

CDCR Layoffs: Related to Undocumented Inmates?

Everyone is having it rough in the correctional system, not least of all prison guards and correctional personnel. It seems that more than 3,600 of the 5,000 layoff notices were sent to CDCR employees (yesterday’s elections are not making it easy to balance the State checkbook). The lists have not been yet presented to the unions, but the decisions take into account seniority. These dire prospects fall on a fertile ground; CCPOA has been disgruntled with the administration for quite a while now. In an interview with the Sac Bee’s State Worker, CCPOA Acting President Chuck Alexander reflects on the problematic aspect of focusing most of the layoffs on prison guards, and brings up a surprising issue:

CA: Well, the layoffs assume you can move 19,000 illegals out of the system. But we’ve always had the ability to do that. We’ve advocated for the last three years a look at the undocumented aspect of the prison population and turn them over to the feds, or send back across the border.

TSW: The administration says it will release or transfer low-level offenders.

CA: The problem is that most of those 19,000 have already been rejected (for transfer out of the system) because they’re violent offenders. (The plan) is a sham. I would venture to guess that most of those 19,000 — if there are that many in the prison system — have an enhancement or serious violent felony.

The connection between these two problems is quite interesting; the problem of undocumented immigrant inmates, as it turns out, runs heavy and deep. At our conference in March, Angie Junck from the Immigrant Legal Resource Center discussed the challenges dealing with the situation, which involve inaccurate litmus tests based on the inmates’ last names; placing suspected undocumented immigrants on a “hold” that lengthens their imprisonment time; and facing not only less privileges while in prison, but also harsh conditions at the center for deportation following the prison experiences. Is this population really what would make a big difference for CCPOA? And are we sure that shipping them off to the feds would result in budget savings (gien the lengthier prison times)?