The Pains of COVID-19 Imprisonment

This is a quick preview of the ideas presented in chapter 3 of our book in progress Fester: Carceral Permeability and the California COVID-19 Correctional Disaster (under contract with UC Press.)

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Numerous factors coalesced to make the 1950s and 1960s fertile grounds for ethnographic prison research. The work of Erving Goffman and others, who viewed prisons as a unique psychological and sociological setting; the relatively fresh horrors of Nazism, fascism, and comunism; and the still-lax approach to research ethics on vulnerable populations (manifested in the controversies around Milgram’s Obedience to Authority study and Zimbardo et al.’s Stanford Prison Experiment) resulted in an explosion of works on prison society, staff-population interactions, and the prison economy. , In the late 1950s, Goffman coined the term “total institution” to capture the absolute subjection of the person to the environment, beginning with the branding rituals that turned the person into an “inmate” and continuing with the clandestine economy, adaptation strategies, alliances and conflicts, and more aspects of prison life. In 1965, a fundamental volume of works in this vein came out, edited by Johnston, Savitz and Wolfgang, titled The Sociology of Punishment and Correction. Many works in the volume were reprints of penology classics, such as Donald Clemmer’s concept of “prisonization” – socialization to life inside. Among these works was a short but fundamental text by criminologist Gresham Sykes titled The Pains of Imprisonment. This was an excerpt from Sykes’ book The Society of Captives, based on his ethnography at a New Jersey Prison.

As Victor Shammas explains in a retrospective, Sykes was far from the first observer of the misery and suffering inflicted on residents of prisons and jails; author Charles Dickens and journalist Henry Mayhew extensively illuminated the anguish of incarceration in the 19th century. Sykes’ effort was important in that it identified that prisons did far more to their residents than merely deprive them of their liberty, which was merely the first of five “pains of imprisonment.”

Sykes’ description of the first pain, Deprivation of Liberty, went beyond the obvious limitation to the confines of the prison (and control measures like cells, checkpoints, and passes.) He included the dissolution of bonds to family and friends due to restrictions or difficulties associated with receiving visitors, sending and receiving mail, or placing telephone calls.

The second pain Sykes identified, Deprivation of Goods and Services, consisted of a decline in the material standard of living compared to life on the outside: unpaid or very poorly compensated labor, few personal possessions, and a decline in the quality of shelter, clothing, diet, and healthcare.

Today, Sykes’ third pain, the Deprivation of Heterosexual Relationships, reads as somewhat antiquated; Sykes’ understanding and framing of homosexual relationships and intimacy behind bars was based on limited assumptions. Nevertheless, his sensitivity to the notion that involuntary celibacy could create emotional, psychological, and physical problems in the inmate population was prescient. He believed an involuntary loss of sexual relations produced tension, anxiety, and a worsened self-image for inmates.

The fourth pain, the Deprivation of Autonomy, consisted of denying prisoners the ability to make even the most basic decisions about their daily life, such as when and what food to eat, when and how bodily functions should be taken care of, and when and how to move within the restricted confines of the prison. Sykes believed the loss of autonomy was harmful because it reduced inmates to a child-like state through a series of public humiliations and forced acts of deference.

Finally, the Deprivation of Security, according to Sykes, consisted of subjecting prisoners to a violent, unsafe environment, in which they could be subjected to assaults, sexual victimization, substance abuse, and disease.

Sykes’ typology of pains yielded a long and fertile strain of criminological literature. Later commentators added considerable nuance to his analysis and, in some cases, modified his findings. One notable example is Benjamin Fleury Steiner and Jamie Longazel’s The Pains of Mass Imprisonment, which offers a mass-incarceration-era update rife with awareness of the increased salience of problems exacerbated by overcrowding and racial injustices. Much has changed, they argued in 2010, since Sykes conducted his ethnography in the mid-1950s, beginning with the scope of the system: At the time of Sykes’s research, there were approximately 250,000 prisoners in the U.S. (state and federal) prisons and jails. As of 2010, there were more than 2.2 million, that is, just about nine times as many prisoners. But there were other changes, which they lay out in page 8:

As opposed to focusing on more traditional penological goals such as rehabilitation, the prerogative of prisons today is aggressive incapacitation. In this way, the deprivation of liberty has been exacerbated in the contemporary era, amounting to what can more accurately be described as containment. • Beyond having to endure what amounts to forced poverty (i.e., the deprivation of goods and services), today’s prisoners must cope with a massive for-profit prison industry that routinely exploits them for financial profits by, for example, making them engage in low-wage labor under often dangerous conditions. • Sykes’s extensive observations of the New Jersey State Prison and interviews with those imprisoned there illustrate a lack of access to sexual relationships; yet today with the recent explosion of the number of women behind bars, we have witnessed a crisis of prisoner sexual abuse as female prisoners find themselves subjected to widespread sexualized coercion by their male captors. Whereas being deprived of autonomy once entailed being reduced to the “weak, helpless, dependent status of childhood” (ibid., p. 75), mass imprisonment has wrought a far more aggressive focus on the isolation of exorbitant numbers of prisoners in the brutal conditions of solitary confinement, utterly stripping away the humanity of many prisoners. • The potentially violent behavior of other prisoners once encompassed the deprivation of security, but today is compounded as prisoners are subjected to numerous forms of prison guard brutality.

This changed landscape of incarceration led Fleury-Steiner and Longazel to an updated inventory of imprisonment pains: Containment, exploitation, coercion, isolation, and brutality. But a critical look at Steiner and Longazel’s inventory of oppression and suffering, supported by their comparative table, reveals that the roots of these deprivations were already present in Sykes’ time. This struck me as an important point as we were cataloguing the hundreds of reports we received about how COVID-19 was experienced in California prisons. Listening to recordings, reading emails, and participating in phone and Zoom calls with incarcerated people and their families throughout the COVID-19 pandemic—sometimes several a day—showed us that COVID-19 merely exposed the neglect, abuse, fear and deprivation already rampant in the system and its horrors are manifestations of these old pains and difficulties. Following Fleury-Steiner and Longazel, we provide an updated inventory, including the parallels to today’s situation:

The Pains of Imprisonment (1958)The Pains of Mass Imprisonment (2010)The Pains of COVID Imprisonment (2021)
deprivation of libertycontainmentquarantine
deprivation of goods and servicesexploitationorganizational and medical collapse
deprivation of heterosexual relationshipscoerciondeprivation and erosion of all relationships
deprivation of autonomyisolation isolation, quarantine, misinformation, fearmongering
deprivation of securitybrutalitymedical neglect and abuse; staff misinformation and noncompliance; retaliation
Sources: Sykes 1958; Fleury and Longazel 2010; Aviram and Goerzen 2021

The deprivation of liberty, which became containment in the era of mass incarceration, was ground zero of what John Witt refers to in American Contagions as the “quarantinist state.” Administrative unwillingness to release people, court prevarication on transfers and releases, playing Tetris with human lives, the bottleneck of the jails, and the pipelines to ICE, all played a role in this quarantine system. Also to be filed here were the forced moves within the prison – the various isolation strategies which conflated punishment with medical need.

The deprivation of goods and services, which morphed into large-scale economic exploitation, manifested itself in the total administrative collapse of the prison. We include in this category the ineptitude of healthcare at the highest levels, the Chino transfer fiasco, the absence of PPE, the absurd preventions on sanitizing chemicals, the collapse of the sanitation and kitchen system, and the spillover of COVID healthcare ineptitude into the realm of general provision of healthcare. We also include here the disrespectful approach to the dying and the dead and the humiliation and mortification of their families.

What Sykes saw as deprivation of heterosexual relationships (and Fleury-Steiner and Longazel argued became sexual coercion by staff and residents in overcrowded facilities) we see as morphing into a deprivation of all consensual relationships: the ban on phone calls, the problems contacting loved ones and informing them of what was happening, the difficulties faced by lawyers, advocates, volunteers, and activists to get a sense of what was occurring and to help.

The deprivation of autonomy, the ultimate mass incarceration example of which is isolation in solitary confinement, became a systemwide regime of isolation and quarantine. The inability to govern one’s fate manifested itself in the transfer system (housing COVID positive and negative people together), the structural and architectural barriers to even the most basic forms of self-protection and social distancing, and the disciplinary system backing up these contagion-producing practices. All of this was amplified through a systemwide atmosphere of misinformation and fearmongering fomented by staff and tacitly approved by high command.

Finally, the deprivation of security, which at its extreme end in mass incarceration becomes brutality, was in evidence everywhere as massive medical neglect, widely visible staff noncompliance and COVID denialism, and a system of retaliation (via transfer threats) against those who pursued political and legal action against the prison system.

In Fester, we present this framework and walk our readers through each of these five pains of imprisonment not through our own words, but through the words of the people who experienced this first hand–incarcerated people and their families, as well as prison workers.

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.

Cause of Death

Source here.

Today I came across this sobering table, which struck me as important not only for the obvious reasons. You’ll note that homicide is nowhere in the top-ten list of causes of death for Americans. If you look at the CDC reports for causes of death in 2017 based on vital statistics, you’ll see homicide ranked anywhere between #106-108 (interestingly, “legal intervention” is ranked 109.)

Yet, to browse through the list of Netflix and Prime Video shows we are offered to numb our souls from the pandemic experience, you could be mistaken to believe that a much higher proportion of Americans succumb to homicide. And to me, this suggests that the current debate about who to release on the basis of “public safety” is guided more by folk devils than by real concerns.

Assuming that you include people in prison in the overall category of human beings whose lives and health matter (if you don’t, thank you for reading this far–we probably don’t speak the same language and I hold no hope of convincing you, nor should you hope to convince me), it should be obvious that COVID-19 poses a much greater risk to public safety, broadly defined, than homicide.

Now, releasing people convicted of violent crimes is not really a trade-off between COVID-19 deaths and homicide deaths, given that the folks most at risk healthwise, as I explained yesterday, are old and sick and also happen to have committed violent crime decades ago.

So, if there is reluctance to release the folks colloquially known as “violent offenders”–many of whom would barely have a technical write-up or two for the last two or three decades–it’s not really coming from concerns for public safety, is it? It’s coming from concerns for palatability and an idea that this is the right time for abstract ideas for retribution.

If I put the state’s resistance to do the right thing here together with the mismanagement of homeless populations, it almost seems like, at our time of need, we’ve simply decided that the bottom rung or two in the American class ladder don’t matter. And they do, which makes my heart hurt.

In Tricycle Magazine, Chenxing Han writes so beautifully:

The Buddha is often likened to a physician. He diagnosed the unsatisfactoriness of the human condition and revealed its cause. The Buddha was no doomsayer, however: his teachings were treatments that promised a cure, an ultimate freedom from that which ails us. SARS-CoV-2 is a truth-teaching virus. It has revealed to me a deep well of fear: of my loved ones dying, of dying myself (or, during more mundane moments, of running out of brown rice). More incisively, it has revealed society’s disturbing inequities and gross iniquities, forcing us to confront the truth of how the most vulnerable among us—the poor, the disabled, the unhoused, and the otherwise marginalized—bear the brunt of this crisis.   

What this cruel teacher will teach our state about caring for its most vulnerable wards remains to be seen–hopefully before it is too late.

Yes, We *Have* to Release People Originally Convicted of Violent Crime: The Last Hearing of Susan Atkins

Manson follower Susan Atkins loses 13th attempt at freedom -- and ...
Susan Atkins wheeled into her last parole hearing in 2009, accompanied by her husband,
James Whitehouse. Photo credit: Ben Margot for the Associated Press.

Latest news on prisoner release: A couple of days ago, the three-judge Plata panel denied relief for procedural reasons (TL;DR “we are not the appropriate forum for this – go to the original courts.”) As good people are scrambling to put together writs for those courts, I wanted to address something that I *thought* would be obvious, but apparently isn’t.

In the aftermath of putting up my petition to release prisoners, I’ve been hearing commentary that we should limit the releases to “nonviolent criminals.” I use the quotation marks because the definitions of what is and is not “violent” and “nonviolent” is not as clear as people think, and because someone’s crime of commitment is not necessarily an indication of their violent tendencies at present, nor does it predict their recidivism.

In Cheap on Crime and elsewhere I described the post-recession efforts to shrink prison population, which targeted only nonviolent people; reformers understandably thought that such reforms would be more palatable to the public. The problem with this kind of policy, though–as this excellent Prison Policy report explains–is that these kind of reforms ignore the majority of people in prison, who happen to be doing time for violent crime.

In addition to this, if we are looking at releases to address a public health crisis, we have to release the people who are vulnerable to the public health threat. And who, in prison, is most vulnerable? Aging and infirm prisoners.

The math is simple. Out of the prison population, folks who were sentenced for a violent crime are the ones most likely to be (1) aging and (2) infirm. Aging, because the sentences are much longer; and infirm, because spending decades in a hotbed of contagion, with poor food and poor exercise options, does not improve one’s health. We know that a considerable portion of the health crisis in California prison is iatrogenic; not so long ago, Supreme Court Justices were horrified to learn that a person was dying behind bars every six days fo a preventable disease. So, a person who has spent decades in prison is more likely to be vulnerable to health threats. Such a person is also more likely to be older (by virtue of having been in prison for 20, 30, 40 years!) and therefore far less of a public risk of reoffending than a younger person who’s been inside for a few months for some nonviolent offense.

So, if there’s any reluctance to release people who are (1) old, (2) sick, and (3) more likely to contract a serious form of disease that will (4) cause more suffering and (5) cost more money, it’s time to look in the mirror and ask ourselves – why?

Is it really because of a mission to protect the public? Because old, sick people are not a safety risk to the public.

So, is it perhaps because we think of these releases not as an essential public health action, but as some kind of “reward” for people who we think are “worthy” or “deserving”?

The correctional system’s ignorance of old age and sickness is a topic I know something about. In Chapter 6 of my book Yesterday’s Monsters I describe the 2009 parole hearing for Susan Atkins, one of the Manson Family members who participated in the murder of Sharon Tate and her friends in 1969. Forty years later, in her early sixties and ravaged by an inoperable brain tumor, Atkins–a devout Christian with a clean disciplinary record for decades–was wheeled into her hearing on a gurney. At her side was her 17-year husband, lawyer James Whitehouse, who represented her in the hope that she be allowed to spend the last few months of her life by his side.

The Parole Commissioners’ treatment of the case was shockingly obtuse. They started by offering the barely conscious Atkins a hearing aid (as if she could hear them), analyzed old psychological reports from her file, and addressed her educational and rehabilitation “prospect.” They even mocked her husband for being able to afford palliative care for his wife. Incensed by this facetiousness, Whitehouse exploded:

For the record, she’s lying in her gurney here. She is paralyzed over 85 percent of her body. She can move her head up and down. She can move it to the side. She used to have partial use of her left arm, partial limited use, meaning she can’t wave to you. She can’t give you a thumbs up. She no longer can point at you, I believe. She can’t snap her fingers. And this is the evidence. . . . We haven’t been able to get her in a wheelchair for well over a year. Permanent speech impairment—“does not communicate, speaking or writing”—complex medical needs, assistance needed eating, bathing, grooming, moving, cleaning, permanent speech and comprehension impairment due to underlying medical problems. . . . That’s the only evidence regarding her medical condition. And all those things have to do with what we are supposed to be looking for the future of behavior. In light of that, is there anything that her commitment offense has to do that’s probative to what she’s going to be doing in the future as far as you know? That’s a question.

The Parole Board refused to release Atkins, arguing that “these Manson killings and the rampage that went on is almost iconic and they have the ability to influence many other people, and she still has that ability as part of that group.” Atkins, who had no ability to do anything at all, died alone in prison a few months later.

If this outcome feels okay to you, ask yourself: what’s it to you? Do you have an idea of deservedness, of a price to pay, of just deserts? Do you think your idea of an appropriate time spent behind bars bows to no one, to nothing, not even to old age, sickness, and death?

Do you feel comfortable sentencing thousands of California prisoners to death because of these ideas of deservedness, or appropriate retribution, that you have? Will these ideas give you comfort when CDCR has to reckon with thousands of preventable deaths of human beings, just like you?

And if your answer is, “well, they didn’t consider that when they killed their victims, right?”, I have news for you: The victims are not coming back. They’ve been gone for decades. It’s horrible, and tragic, and we can’t fix that. Certainly not with another tragedy.

Get in touch with our common humanity. Write to the Governor. Sign my petition. Do something.

Gov. Newsom, Please Release More Prisoners to Prevent CDCR from Becoming a Mass Grave

Dear Gov. Newsom,

Many thanks for your tireless work on behalf of Californians in their hour of need. I can only imagine the multiple emergencies on your agenda and the many proverbial fires you must put out to “flatten the curve” and give our emergency services a fighting chance against the COVID-19 pandemic.

I appreciated learning about your recent commutations, as well as about the plans you have put in place to release 3,500 prisoners from CDCR custody. It is a good start, but, unfortunately, it will likely be merely a drop in the bucket.

Less than a decade ago, the Supreme Court found healthcare conditions at CDCR so appalling that, every six days, a person behind bars died from a preventable, iatrogenic disease. The Court attributed this massive failure to deliver anything that could be even remotely called “health care” to overcrowding in prisons, and supported the federal three-judge panel recommendation to release approximately 30,000 prisoners. That has somewhat improved the situation, but even with massive efforts toward a turnaround on the part of the federal receiver, we are still seeing woefully deficient healthcare–interminable lines and wait times, people treated in cages in which they have to wait for hours, “group therapy” consisting of a semicircle of cages.

And that’s without a pandemic going on.

Gov. Newsom, our prisons are a Petri dish for contagion and disease. It is impossible to provide minimal health care to this many people with a highly contagious virus on the loose.

The Public Policy Institute of California, relying on CDCR statistics, reports that 23% of California inmates are 50 or older. Aging prisoners may be contributing to California’s prison health care costs—now highest in the nation. The state spent $19,796 per inmate on health care in fiscal year 2015, according to the Pew Charitable Trusts. These costs were more than three times the national average and 25% more than in 2010. Moreover, many California prisoners serve extremely long sentences: Approximately 33,000 inmates are serving sentences of life or life without parole. Another 7,000 are “third strikers,” fewer than 100 of whom are released annually after serving about 17 years. Fewer than 1,000 of these inmates are released every year, typically after spending two or more decades behind bars.

Isn’t decades in prison enough? How much retribution or deterrence do we still need for people serving sentences of 30, 40, or 50 years, that we must keep them behind bars for longer in the face of a lethal pandemic?

Robust research about aging in prison confirms that people age much faster behind bars than they do on the outside, and they are much more vulnerable to disease–partly because of confinement conditions and partly due to faulty health care.

The scale of releases we should contemplate is in the tens of thousands, not in the thousands. If you do not act now, within a few short weeks, the CDCR will become a mass grave.

Please, don’t let the current litigation be the only push to do the right thing. You have done the right thing so many times–as Mayor of San Francisco and as our Governor. The prisoners are Californians, too. They can’t vote from prison, but they are your constituents and you must consider their welfare.

Please, act now, before thousands of lives are lost.

Readers, please join this open letter by signing my Change.org petition.

CA Divests from Private Prisons: Realistic? A Good Thing?

Hailed, and partly for good reasons, as a positive development, the Guardian today announces:

The private prison industry is set to be upended after California lawmakers passed a bill on Wednesday banning the facilities from operating in the state. The move will probably also close down four large immigration detention facilities that can hold up to 4,500 people at a time. 

The legislation is being hailed as a major victory for criminal justice reform because it removes the profit motive from incarceration. It also marks a dramatic departure from California’s past, when private prisons were relied on to reduce crowding in state-run facilities. 

Private prison companies used to view California as one of their fastest-growing markets. As recently as 2016, private prisons locked up approximately 7,000 Californians, about 5% of the state’s total prison population, according to the federal Bureau of Justice Statistics. But in recent years, thousands of inmates have been transferred from private prisons back into state-run facilities. As of June, private prisons held 2,222 of California’s total inmate population.

What does this mean, exactly? Keep in mind that there are no actual private prisons on California soil–and yet, California is one of the private prison industry’s best clients, as it houses thousands of its inmates in Arizona and other states that have a flourishing array of private facilities (mostly owned by CoreCivic, formerly the CCA, and the Geo Group.) The bill, AB 32, changes this relationship by barring the state from contracting with private providers outside the state. This includes, importantly, the use of private prisons for holding undocumented immigrants: “Detention facility” is defined in the bill as “any facility in which persons are incarcerated or otherwise involuntarily confined for purposes of execution of a punitive sentence imposed by a court or detention pending a trial, hearing, or other judicial or administrative proceeding.”

Is it realistic for CA legislature to divest from private prisons? It is, to the extent that “private prison” is, as defined in the bill, “a detention facility that is operated by a private, nongovernmental, for-profit entity, and operating pursuant to a contract or agreement with a governmental entity.” But what about the many functions provided inside so-called governmental prisons in CA through private subcontractors? This interesting magazine article about prison food in Chino depicts what is an atypically good reality; prison food is hard to provide without recurring to private contracting, and is awful whether provided through public or private means. Similarly, the much-maligned CA prison healthcare system, which has been for years in the hands of a federal receiver, extensively contracts with private health care providers. This stuff is not the alternative to a public prison economy: it *is* the economy. How do we make sure that prisoners have beds to sleep on, doctors and nurses to take care of them, and two or three (meager, yucky) meals a day? In the neoliberal capitalist world, there aren’t a lot of options out there. So divesting from private prisons completely is not a particularly realistic premise, nor is it particularly desirable (private providers are not categorically worse for the inmates than public providers, and everyone is motivated by greed, as I explain here.) It does have one important, unqualified positive effect: we are not building new public prisons, and we are not housing people in private prisons anymore, so we should incarcerate less people, period. That in itself will be a success.

But there’s something else I find somewhat fishy here, and that’s the supposed divestment of CA from private detention of immigrants. The picture here is much more complicated, because undocumented immigrants are primarily the responsibility of DHS and ICE, the latter of which incarcerates and prepares people for removal as the federal arm of law enforcement (Richard Boswell explains this separation of powers very well here.) What the feds do is contract with states such as CA to house undocumented immigrants, over whom Congress has plenary power and ICE has enforcement prerogatives. Some CA cities house immigrants in their public jails; others contract with private subcontractor providers to meet ICE’s demand. CA’s complicity with awful federal policies is not so much in the fact that they deal with private contractors; its in the awful conditions in both private and public facilities and in poorly supervising the conditions in these places. To be fair, it’s not all CA’s fault – their inability to supervise more effectively stems largely from the general chaos in immigration detention and from hurdles placed by ICE. But I’m unclear on whether these undocumented minors are worse off in private facilities than they are in post-Plata public jails, which do a notoriously poor job distinguishing between immigrants and “real criminals” (whatever the heck that means.)

In short, before dancing a jig about divestment from the public industry, let’s ask ourselves some hard questions about the market itself and how it incentivizes public and private institutions alike to do a poor job locking people up (including people whose only supposed “crime” is saving themselves and their families from the conditions in Central America.)

CDCR Eliminates Inmate Copayments for Health Care

Today CDCR announced that, effective March 1, they will eliminate inmate copayments for healthcare, because an internal analysis reveals that copayments “have minimal fiscal benefit and are not aligned with patient care.” 

Specifically, copayments may hinder patients from seeking care for health issues which, without early detection and intervention, may become exacerbated, resulting in decreased treatment efficacy and/or increased treatment cost. The Department’s health care delivery system, known as the Complete Care Model, is based on a preventative and comprehensive approach to patient care. Early detection and preventative health care aligns with most public and private health care organizations and can prove to be fiscally prudent.


The first thing that occurred to me upon reading this was how many people are probably unaware that incarcerated patients make copayments, just like patients on the outside. How did that come about? CDCR provides background:

In 1994, Section 5007.5(a) was added to the Penal Code (PC) to read: CDCR is authorized to charge a fee in the amount of five dollars ($5) for each inmate-initiated medical or dental visit of an inmate confined in the state prison, which will be charged to the prison account of the inmate. If the inmate has no money in his or her personal account, there shall be   no charge for the medical or dental visit. An inmate shall not be denied medical care because of a lack of funds in his or her prison account. The medical provider may waive the fee for any inmate-initiated treatment and shall waive the fee in any life-threatening or emergency situation, defined as those health services required for alleviation of severe pain or for immediate diagnosis and treatment of unforeseen medical conditions that if not immediately diagnosed and treated could lead to disability or death. Follow-up medical visits at the direction of the medical staff shall not be charged to the inmate.

This section aligns with other savings trends I reviewed in Cheap on Crime. The most egregious one is, of course, the pay-to-stay jail, but less egregious examples abound and participation in health care costs is one of them. 

What I find interesting is that the same savings rationale used for imposing the costs in the first place is now being used for getting rid of them–copayments are not vile and unjust; rather, the problem is that they don’t pay off, because they deter people from seeking health care and thus make their condition worse and therefore more expensive.

The elephant in the room, of course, is the question of quality. Health care in California prisons is becoming more and more expensive and we are once again taking heat from the Ninth Circuit for the disappointing quality of mental health care in prison. But if it’s not getting better, it is at least being offered for free.

Heat Wave in Corcoran: Holding Hostages, Talking Consumers

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.

The Ninth Circuit: The Feds are Responsible for the Health of Inmates in Privately-Managed Prison

Petitioner Richard Nuwintore with his attorneys,
Ian Wallach and Jason Feldman, after their Ninth Circuit victory

Today the Ninth Circuit decided Edison and Nuwintore v. U.S.–two cases involving the government’s responsibility for the valley fever epidemic at Taft, a federal prison located in Kern County. Taft is owned by the U.S. government but operated by the GEO Group, the second largest private prison company in the country.

Gregory Edison and Richard Nuwintore were sent to Taft without warning about the dangers of valley fever. The disease, also known as coccidiodomycosis, has a severe variation that disproportionally manifests in African American patients. Both Edison and Nuwintore fell ill; Nuwintore, who has been released, is now treated under Obamacare, and Edison is being released soon and will also receive care under Obamacare. The condition is chronic and can make people too sick to work.

Is the United States responsible for their illness? The federal government tried to argue that, under the independent contractor exception to the Federal Tort Claims Act, it cannot be held responsible for the actions of a private contractor. Today, the Ninth Circuit found that, due to the government’s special responsibility for the plaintiffs (as their jailer), the exception does not apply and the government is liable. I had the great pleasure to correspond with Ian Wallach of Feldman and Wallach, who told me a bit more about the case:

Walk me through the ownership/operation structure of Taft. I understand that Taft is the only federal facility which is owned by the Government and operated by a private contractor. Why is this arrangement so rare?

Taft is presently owned by the USA, who contracted with Management and Training Corporation back in 2007 to operate the facility.  I don’t know why the arrangement is so rare.  It did create some novel issues with the application of the independent contractor exception.  Colleagues have wondered if it is because of the valley fever issue.  It may sound like a conspiracy theory, but there are some legitimate concerns.  The USA recognized the cocci (another word for valley fever, short for coccidiodomycosis) problem potentially in 1999, and knew some would get ill, and perhaps die.  And the USA has less liability if someone else is operating the facility, even though the USA sends people there.  And the facility is, for unknown reasons, primarily a pre-deportation facility.  That means that people facing low terms, or people about to be deported, are held there.  If they get sick, and are deported, there is not much practical legal recourse available.  Worse than that — there isn’t much access to medical care.  This is why we know of only one fatality from valley fever at Taft, but there may be many more.

Given Taft’s unique status as government-owned and privately operated, would the government’s responsibility in this case extend to private prisons in which the facility is both owned and operated by private contractors? How much government involvement should create responsibility and prevail over the independent contractor exception?

Sure.  As to the failure to warn claim.  And the negligent implementation of policy claim — if the USA developed and implemented policy.  And if the USA reserved control over any aspect of the facility — as it did here with structural changes.

The test, as adopted by the Court, is “is there an independent basis for liability?”

If yes, then the claim should stand. As to your second questions, people have brought challenges, in other contexts, to the independent contractor exception, asserting that the USA asserted so much control that it didn’t really delegate the duties at issue.  I have some charts with summaries of cases on this issue I prepared for use in the oral argument (which can be seen here).  I should clean them up before circulating them, and today has been busy, but let me know if I should send them along.  The standard was too high for us to meet, so we didn’t make that argument on appeal (we did below).  And we had some independent bases for liability, which we felt was the right way to go.

Should we be concerned about a potential incentive for the federal government to distance itself from inmates and shift any potential liabilities on the shoulders of private contractors?

Absolutely.  And that may be what happened here.  Plus privatization of prisons is messy.  I understand that there is a private prison in Ohio that successfully petitioned to control parole hearings (and even here, parol boards can consider reports by an inmate’s prison in determining parole).  And these corporations have a financial incentive for parole to be denied.  That’s flesh-peddling.

This case involved a federal privatized facility, but as we know, state facilities, which are public, are often public only by name, and much of the health care in California state prisons is privatized. Does today’s decision shed any light on questions of liability in this context?

Only to the extent that if you can identify a breach of a separate and distinct duty, and get around any immunity, then your claim should proceed. Today’s case was about federal governmental immunity. This would not apply to private actors (although their attorneys have litigated that it does).

And California has separate immunities.  Which are awful.  In the class action we have, Jackson v. Brown, where 800 inmates need life-long care, and where 40 inmates died, all as a result of infections at Avenal and Pleasant Valley state prisons, the District Court dismissed the case arguing that qualified immunity protected everyone from 8th Amendment claims, because even if the conduct was “cruel and unusual”, there was no “clearly identified right” at issue.  We think it was the right to be housed in a safe facility, but the court claimed it was the right to be in a facility without an excessive amount of valley fever spores, determine by societal standards.  That is on appeal.

There is a great case from the Cal. Supreme Court — Giraldo v. Cal. Dep’t of Corrs. & Rehab., 85 Cal. Rptr. 3d 371 (2008), which we relied on and the 9th Circuit expanded upon in today’s decision, that spoke of the Jailer’s duty to inmates, and set forth a special relationship.  It’s a great read and a positive expression of the law.

As the sad facts in this case remind us, individuals of certain ethnicities are more prone to certain medical conditions; this is true for valley fever, and also for other diseases and chronic conditions. Would this create an incentive for private prison contractors to refuse inmates of certain ethnicities, because their healthcare would be more complicated or costly? And should we resist such bargaining with regulation?

I am not aware of any vehicle where this could occur.  A bidding process is set up to operate a facility, and the bidders know who will be housed there and what is apparently needed, and can request to transfer people away, but no one has to listen to that request.  In three other valley fever cases we have, the contractor argued that they had no say in who they accepted, and the injury was the delegation.  These cases (People v. Hammond, Sutton, and Aluya) were also dismissed on summary judgment — because the court bought it.  This is on appeal too (and you are beginning to see how Eastern District court respond to claims by inmates about valley fever.  Add that there are no attorney’s fees provisions, and these are exhausting mid-level tort cases, so few lawyers fight them.  Which is why these dangerous practices continue, as there is very little accountability).  Regulation is a great idea — but in the interim, I’ll keep suing.

Finally, a big part of today’s decision involved the government’s duty to warn inmates about the medical dangers involved in serving their prison term at Taft. But if inmates have no choice on where they are incarcerated, what lends this duty legal value?

The failure to warn deprived these individuals of four avenues of redress.  Had they been warned, they could have done the following:

  • Seek an administrative remedy to be housed elsewhere, before ever arriving at Taft.
  • Seek an administrative remedy the day they arrive, seeking transfer.  Most people are infected within the first few months of arrival, but if they are lucky, they could be transferred out before getting infected.
  • Change their lifestyle while there. This is largely a camp facility with tons of leisure time.  Which, if warned, would be better spent inside. 
  • And they can choose not to take certain jobs (like those that involve digging or gardening or any contact with soil).  They can wear N95 filtration masks if they wish.  

And these changes may greatly decrease their exposure.

The Ninth Circuit decision sheds an interesting light on the malleability of the public-private divide in the context of prison privatization. Congratulations to the plaintiffs and their attorneys, and wishes of good health to everyone impacted by the epidemic.

Good News on Health Care for Transgender Inmates

Today a settlement was reached in Quine v. Brown, a case involving housing and healthcare for transgender inmates. The Transgender Law Center reports:

Today, the California Department of Corrections and Rehabilitation reached a groundbreaking settlement with Shiloh Quine, a transgender woman held in a men’s prison, to move her to a women’s facility and provide medical care, including gender-affirming surgery, determined necessary by several medical and mental health professionals. In the settlement, the state also agreed to change its policies so that transgender prisoners can access clothing and commissary items consistent with their gender identity. The state also affirmed that it is revising its policies regarding transgender inmates’ access to medically necessary treatment for gender dysphoria, including surgery.

“This historic settlement is a tremendous victory, not just for Shiloh and transgender people in prison, but for all transgender people who have ever been denied medical care or basic recognition of our humanity just because of who we are,” said Kris Hayashi, Executive Director of Transgender Law Center, which represented Shiloh along with pro bono counsel from the law firm of Morgan, Lewis & Bockius LLP. “After years of unnecessary suffering, Shiloh will finally get the care she desperately needs – and transgender people nationwide will hear a state government affirm that our identities and medical needs are as valid as anyone else’s.”