Assembly Bill 720, authored by Assemblymember Skinner, was signed by Governor Brown today. This bill allows the board of supervisors in each county to designate an entity to assist certain jail inmates to apply for a health insurance affordability program, and will prohibit county jail inmates who are currently enrolled in the Medi-Cal from being terminated from the program due to their detention, unless required by federal law or they become otherwise ineligible.
Researching the California Criminal Justice Realignment
I am in Seattle, WA, for the West Coast Law and Society Retreat, where we just finished a panel examining various perspectives on the criminal justice realignment. The panel featured several folks doing work on criminal justice reform from various perspectives: W. David Ball from Santa Clara University, Mona Lynch from UC Irvine, Jonathan Simon from UC Berkeley, and Katherine Beckett from University of Washington. We all talked about the research that is being done, the research that should be done, how the research community can be relevant and influential in making healthy decisions about corrections in California, and the impediments and challenges that lie ahead.
David Ball spoke about the importance of communicating with decisionmakers in the field. His fieldwork (with Bob Weisberg) involves prosecutorial decisionmaking after realignment. They interview prosecutors about the existence, or lack thereof, of consistent prosecutorial guidelines. In presenting prosecutors with a series of hypotheticals, which they ask prosecutors to rate on a seriousness scale, they expose the discretionary nature of realignment prosecution: The choice what to charge a person with could impact whether s/he will be regarded as a “non-non-non” and therefore housed in a jail. They have also uncovered the subtle interactions between prosecutors and the police, primarily areas of non-enforcement and non-prosecution.
Mona Lynch mentioned that the two types of realignment research done most frequently are policy evaluation, which is the only thing that can be funded (and has been done by several organizations, notably CJCJ and the ACLU of Northern CA), and legal research that focuses on Eighth Amendment arguments. The challenges ahead lie in the “hydra risk” of bad conditions in many jails in lieu of a few prisons. She suggested two socio-legal avenues for research: returning to, and revisiting, the classic courtroom ethnographies in a way that would uncover the framing and understanding of offenders (think David Sudnow’s Normal Crimes – first deciding what a person deserves based on a typology and then putting it together via the existing sentencing enhancements), and a study of the experience of jail incarceration (jails have been understudied; one great counterexample is Sharon Dolovich’s study of the Los Angeles County Jail.) This research may entail access issues we should overcome.
Jonathan Simon reminded us that realignment cannot be framed as an improvement on the system, but rather as a cover-up for a human rights crime that we will some day grow to regret: “torture on the installment plan.”He also encouraged us to challenge the assumption that rehabilitation and risk reduction programs need to be in place to combat the threat to public safety, problematizing the correlation CDCR draws between public safety and incarceration (with the drug war in the throes of death, are we reaffirming our commitment to locking up violent offenders for disproportionately long periods of time?).
Katherine Beckett provided a much-needed comparative context. She reminded us that other states are also punting their responsibilities to the county level. Also, many states have wobbler legislation, nonprosecutorial policies that yield county variation, and parole/probation reforms (as in Kansas), as well as drug law reform (New York State is an example). Her current project, reviewing prison admission data from 29 states, indicates that many states have seen a reduction in prison admission through these reforms, but these gains are offset by admissions for violence, public order, and property offenses, which are surprising given that arrest rates are falling. Beckett and other panelists highlighted the problem of entrenching the notion of “dangerous offenders”, whose mass incarceration is being
kosherized via the decarceration of the presumably less-dangerous drug offenders.
We had a very lively discussion with audience members:
Are there opportunities for graduate students who want to do empirical qualitative analysis of the realignment? We should know what other people are studying, and maybe throw in some questions in questionnaires (the Federal Sentencing Reporter issue on realignment is a great example.)
What are the interactions with, and effect on, immigration law? Has realignment changed charging practices with offenses that may or may not trigger deportation?
How do institutional pressures – courtroom workgroups, profiteers, unions, the market – play a role? Nobody wants their organization to shrink, and therefore prosecutors have a vested interest in keeping mass incarceration at its current level.
What role does impact litigation and critical resistance play in the process of realignment? We should keep in mind that a third of the jails already have population cap orders.
With regard to policy evaluation studies, those are difficult to do, because realignment is not the only thing that has changed. Some panelists suggested longitudinal studies (following up on cohorts of offenders) and comparative between counties. But there is also a concern about how to frame the dependent variable: What would it mean for realignment to “work”? And from whose perspective? What do we want or expect from our criminal justice policy? And, how to measure recidivism?
One suggestion made on the panel was to look at home detention and GPS as a possible alternative for mass incarceration. While the prison is unique as an institution producing what we now know as a human rights disaster, replacing it by home detention would also have adverse and alienating effects.
We also discussed the problematic aspect of thinking that mass incarceration is “normal”, and that we won’t be able to really think outside the box given the stake so many institutions and organizations have in the existence of mass incarceration.
Finally, a workshop on realignment is being planned for October 2014, and we hope to be there and be able to say more about how realignment works.
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I’d very much like to invite the panelists and audience to send over links to research on realignment, so we can have a repository of resources here at the CCC blog.
BREAKING NEWS: Federal Judge Approves Force-Feeding CA Strikers
A federal judge has approved CDCR’s request to force-feed inmates if necessary. The Associated Press reports:
Officials say they fear for the welfare of nearly 70 inmates who have refused all prison-issued meals since the strike began July 8 over the holding of gang leaders and other violent inmates in solitary confinement that can last for decades.
They are among nearly 130 inmates in six prisons who were refusing meals. When the strike began it included nearly 30,000 of the 133,000 inmates in California prisons.
Prison policy is to let inmates starve to death if they have signed legally binding do-not-resuscitate requests.
But state corrections officials and a federal receiver who controls inmate medical care received blanket authority from U.S. District Judge Thelton Henderson of San Francisco to feed inmates who may be in failing health.
The order includes those who recently signed requests that they not be revived.
This blanket permission raises a number of important ethical considerations. This New York Times debate highlights various fascinating aspects of the dilemma. You’ll note that reactions to this practice differ according to the commentators’ affiliations. Medical staff, abiding by their Hippocratic oath, may find it difficult to administer “a health-care solution to a political problem.” Some of the legal challenges are highlighted in this piece by Tracey Ohm. In arguing that force-feeding is unconstitutional, some argue that fasting is protected speech, and some argue that it is part of the right to privacy.
For those wondering what force-feeding is like, the above video depicts rap artist Mos Def, who undertook the force-feeding procedure administered in Guantanamo Bay, and had to stop because he could not bear going through with it.
Tubal Ligations to Female Inmates in CA Prisons With Questionable Consent
Yes, you read it right. The Sac Bee reports:
At least 148 women received tubal ligations in violation of prison rules during those five years – and there are perhaps 100 more dating back to the late 1990s, according to state documents and interviews.
From 1997 to 2010, the state paid doctors $147,460 to perform the procedure, according to a database of contracted medical services for state prisoners.
The women were signed up for the surgery while they were pregnant and housed at either the California Institution for Women in Corona or Valley State Prison for Women in Chowchilla, which is now a men’s prison.
As you’ll see in the piece, the issue of consent is contested.
Three Federal Judges to Jerry: Comply Immediately
Yesterday, a three-judge panel tired of the state’s evasion maneuvers ordered the Governor to comply with the original Plata mandate. The Sac Bee reports:
In a sharp rebuke of Gov. Jerry Brown, the judges said the state must take immediate steps to release inmates toward compliance with the panel’s 2009 order that the prison population be reduced to 137.5 percent of capacity, an order the U.S. Supreme Court later adopted.
“The history of this litigation is of defendants’ repeated failure to take the necessary steps to remedy the constitutional violations in its prison system,” the panel wrote in a scathing 51-page order and opinion that demands the state immediately slash inmate levels or face a contempt citation.
“We are compelled to enforce the Federal Constitution and to enforce the constitutional rights of all persons, including prisoners,” the panel wrote in an order that left no doubt the judges believe the state has intentionally defied its previous orders.
The latest one essentially requires the state to cut its inmate population by nearly 10,000 inmates by the end of the year, and to take steps to ensure that the count will not jump back above the 137.5 percent level.
On other occasions, we’ve discussed the court’s patience with the state and explained why it might seem a preferable course of action to get as much as possible accomplished consensually. But it seems that the court’s patience has worn thin.
Interestingly, the original Plata decisions did not explicitly require a release, and neither does this one. Realignment-related measures could be taken to increase capacity.
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Props to Simon Grivet for the link.
Devastating Overcrowding at Chowchilla Women’s Prison
Litigation about overcrowding has focused on men’s institutions. But what about women’s prisons? Watch this video for some personal testimonies about heartbreaking tragedies caused by the lack of ability to attend to people medically at Chowchilla Women’s Prison.
Federal Court: Mental Health System Not Improved Enough – Special Master Stays
We’ve been remiss in reporting the major development in the Coleman case – the counterpart to Plata that addressed the deficiencies in the mental health system. To Governor Brown’s dismay, Judge Lawrence Karlton has decided that the mental health system has not improved nearly enough to end the special master supervision. The L.A. Times reports:
Karlton found that “ongoing constitutional violations remain,” including failure to act on suicide-prevention methods recommended by the court’s special master and one of the state’s own experts. What gains California has made in reducing waiting lists for seriously ill inmates to receive psychiatric care “are new, and work remains,” he said.
The judge found climbing suicide rates, shortages of mental health crisis beds and mental health workers, in addition to inadequate treatment space, despite years of planning, amounting to what he termed “deliberate indifference.”
Court records show that Brown’s surprise Jan. 7 motion to end federal oversight had been in the works since at least late 2011. The motion triggered a 90-day deadline for a ruling, leaving inmate lawyers roughly 10 weeks to hire experts, tour prisons and build their opposing case and giving Karlton a matter of days to weigh thousands of pages of contradictory depositions.
We saw some of the images captured by the parties during Michael Bien’s talk at our recent conference. The use of cages for everything, including group therapy, and the horrific condition of cells for people on suicide watch, stood out for me.
Riverside Jail Inmates Sue over Conditions
Breaking news from the Prison Law Office: Three inmates at the Riverside jail have just served a federal action suit over their conditions, particularly the appalling health care. The press release provides two poignant examples:
Angela Patterson, a plaintiff in the case, suffered nearly a year of delays, cancellations, and inadequate medical care for severe injuries she sustained in a car accident prior to entering the jail. As a result, a temporary filter implanted near her heart cannot be removed, and she will suffer a lifetime of anticoagulation medications and frequent laboratory monitoring, with significant risk of fatal bleeds and other complications.
Quinton Gray, another plaintiff, was given potent psychotropic medication without appropriate evaluation or follow-up, placing him at risk for life-threatening consequences. As a result of the medication mismanagement and treatment failures, he lives with agonizing side effects: twitching, tongue-biting, increased seizures and tongue swelling, racing thoughts, disorientation, depression, and chronic sleep loss.
The inmates complain that the slashing of medical care budgets in Riverside have yielded unacceptable practices. They are represented by the Prison Law Office and by Akin Gump Strauss Hauer & Feld, LLP.
Before Realignment, one of the arguments in favor of shifting inmates from prisons to jails was that surely the counties would do a better job than the overcrowded state institutions. This is not the case in several jails, and we might see an increasing number of lawsuits focused on unacceptable jail conditions.
Join us for California Correctional Crisis: Realignment and Reform for a conversation about county jail conditions.
More From Jerry: Federal Prison Oversight a Waste of Money?
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| Photo credit Randall Benton for the Sac Bee. |
After Governor Brown’s public comments about attorney’s fees for inmate rights’ litigators – on which we had plenty to say here and on The Recorder – he’s back to it this morning. The Sac Bee reports:
“During the life of these lawsuits, the prison health care budget has gone from $700 million to $2 billion,” Brown said in an interview with The Bee, his first on the issue since the state filed court documents in January seeking to regain control of its prisons.
“That money is coming out of the university, it’s coming out of child care. It’s a situation you wouldn’t dream anyone would want.”
The governor’s comments came as lawyers prepare for a battle in Sacramento federal court later this month over whether the state is providing a constitutional level of mental health and medical care for inmates. Oral arguments are scheduled for March 27 on California’s motion to terminate oversight of mental health care by U.S. District Judge Lawrence K. Karlton.
Another motion by the state, also filed in January, seeks to vacate or modify an order by a specially convened three-judge court to reduce inmate population. Oral arguments on that motion have not yet been scheduled.
Really, Jerry? Really? You reap what you sow. Why is the prison health care budget so costly? It’s true that mistreating and ignoring people’s medical plight is cheaper than actually treating them, but perhaps if treating them is so expensive then one should have considered whether so many of them should have been in prison in the first place. And whose fault is it that prison expenditures are higher than what we spend on education and child care? Complaining about this given that the government is the culprit is absurd, offensive, and inflammatory.
Starving the Messenger
It strikes me that yesterday’s post about Governor Brown’s gripe against the Prison Law Office and Rosen, Bien, Galvan and Grunfeld requires more blogging attention, because it hits at the heart of the problem: We shouldn’t begrudge people who work for human rights for getting paid to do their work. We should be grateful that they are willing, and able, to do it effectively.
I invite you, gentle reader, to revisit the figures offered by the Washington Post regarding the expenses on Plata/Coleman. The Prison Law office is reported to have received $8.3 million in attorney’s fees; Rosen, Bien, Galvan and Grunfeld have received $19 million. But, while it might be convenient for Brown to focus on these expenses, there were other lofty expenditures on this case, including the salaries for Brown’s own attorneys and for the people appointed by the court to mix his mess of a correctional health care system, which he conveniently ignores. The expenses related to the federal receiver were $7 million, and the expenses related to the special master in charge of the mental health system were $48.4 million. And of course, state attorneys, and private attorneys hired by the state, also need to be paid for their services. The Justice Department salaries amount to more than $4 million, and the private attorneys hired by the state were paid $15 million.
The conclusion from the numbers is that Governor brown is misled at best, and misleading at worst. Yes, the lawyers for the inmates won attorneys’ fees – as they well deserve for their important service. It would be naïve to expect so many people, on both sides of the litigation, to commit so many hours to these cases as volunteer work. As Governor Brown no doubt knows, this is how civil rights cases are litigated in this country: Relentlessly, and by taking a financial gamble that the court will eventually see the serious civil and human rights violations for what they are, the inmates will win, and their attorneys will recoup their costs as well as make a well-deserved living.
But the remark is also infuriating in principle. Nonprofits that help those to whom the state turns its back are important watchdogs in the struggle to humanely treat the weakest links in our social chain. And solid, prosperous law firms who devote a substantial amount of their human and material resources to civil rights litigation, rather than pay lip service to the idea of pro bono, should be commended and encouraged.
As a coda, it would behoove Governor Brown and his number crunchers to get a broader perspective. In 2012—the year at the end of which the state began realigning its non-serious offenders to county jails—the total budget for the California Department of Corrections and Rehabilitation (CDCR) was $10 billion dollars. Out of this amount, $2 billion was spent on correctional health services, to mixed results. These expenditures dwarf the dwindling funds spent on inmate vocational and educational programming. They also dwarf the expenses of the lawsuit itself. Governor Brown is to be commended for advocating fiscal responsibility, but perhaps some of CDCR’s expenses could be lowered if Californians had abolished our costly and broken death penalty years ago, or if anyone had considered the possibility that some the many people we are now diverting to county jails need not be incarcerated in the first place. Perhaps retooling parole as an instrument of hope, rather than a revolving door of recidivism, could have lowered the price tab. Perhaps our nineteen-year affair with the Three Strikes Law brought into prison thousands of people, many of them for nonviolent offenses, for disproportionately lengthy sentences that encumbered us with their health care expenses. And perhaps providing people with skilled, prompt and humane health care could prevent the many iatrogenic health problems that plague our systems and jails and save a few nickels and dimes as well.
As to the accusation of prolonging litigation in this matter, perhaps the fault for that lies with the state’s stalling techniques in what could amount, under a less forgiving judicial system, to contempt of court. Complying with the court mandate, which left the state ample leeway in choosing its course of action, would also be a way to save money.
The California health care cases shone a bright light on one of our state’s most invisible populations and its plight. We would not have known that our tax money was being wasted on abysmal medical treatment to a population doing time (sometimes excessive and sometimes unnecessary) under overcrowded, unsanitary conditions, sleeping in triple bunks in converted gyms, and receiving medical attention in cages. Like Governor Brown, I am pleased that serious steps have been taken to cure this disease. But when someone draws our attention to human rights violations, we don’t shoot the messenger, nor do we complain about his salary. We thank them for opening our eyes.