What’s Cheaper: Litigating or Realigning?

Today brings with it an interesting financial gripe: Governor Brown’s concern with the money made by private law firms representing inmates in prison conditions litigation. ABC News Report:

A tally by The Associated Press, compiled from three state agencies, shows California taxpayers have spent $182 million for inmates’ attorneys and court-appointed authorities over the past 15 years. The payments cover a dozen lawsuits filed over the treatment of state prisoners, parolees and incarcerated juveniles, some of which have been settled.

The total exceeds $200 million when the state’s own legal costs are added.

While the amounts are a blip on California’s budget, they provide a continuous income stream for the private attorneys and experts involved in the ongoing litigation. And that is the point Brown is trying to make.

The AP sought the tally after the Democratic governor began using court filings and public appearances to call for an end to two major lawsuits that have forced the state to spend billions of dollars improving its medical and mental health care for prison inmates. Brown says the complaints are expensive, frivolous and motivated by attorneys’ own financial interest.

“They don’t want to go away,” he said last month, standing behind a stack of court documents. “I mean, the name of the game here is, ‘Come to Sacramento and get your little piece of the pie.'”
Brown says that, thanks to recent overhauls, California now offers inmates the best medical and mental health care of any prison system in the nation.

The response from Prison Law Office:

“It’s ridiculous for the governor to merely characterize these cases as being about money, when in fact these cases have been the only impetus in the last 20 years for reducing the prison population and improving conditions,” said Donald Specter, director of the nonprofit Prison Law Office in Berkeley, which has won several major cases against the state.

And from Rosen, Bien, Galvan and Grunfeld:

Michael Bien, the lead attorney representing the welfare of mentally ill inmates in one of the major class-action lawsuits, said Brown is wasting more of the state’s money on a legal fight he has little hope of winning. Moreover, Bien said, inmates’ attorneys expect the court battle will reveal additional lapses in inmate care that will cost the state even more money to fix.

“He’s litigating with your money and my money,” said Bien, of the San Francisco law firm Rosen Bien Galvan and Grunfeld, which is among the law firms that have been paid $19 million by the state in the inmate mental health lawsuit.

He said Brown and the state would be better off complying with a prison population cap supported by the U.S. Supreme Court and by working with Lopes to reduce inmate suicides and improve mental health treatment.

“It’s a distraction from the primary issue here, which is, ‘Why is the state still running unconstitutional prisons where prisoners are dying unnecessarily?'” Bien said. “The easiest way to stop this process is to fix the problem.”

The Washington Post offers the breakdown on legal costs for Plata/Coleman, 1997-2012:

  • Inmates’ attorneys (lead firm, Prison Law Office, Berkeley), medical lawsuit: $8.3 million. 
  • Inmates’ attorneys (lead firm, Rosen Bien Galvan & Grunfeld, San Francisco), mental health lawsuit: $19 million. 
  • Court-appointed receiver’s attorneys and experts, medical lawsuit: $7 million. 
  •  Court-appointed special master and experts, mental health lawsuit: $48.4 million. 
  •  Private lawyers hired by the state, medical lawsuit: $14.3 million. 
  •  Private lawyers hired by the state, mental health lawsuit: $714,312. 
  •  Justice Department attorneys representing the state, medical lawsuit: $589,797. 
  •  Justice Department attorneys representing the state, mental health lawsuit: $3.5 million. 

Total legal costs for medical and mental health lawsuits: $101.8 million. 

Query: Wouldn’t taxpayers–particularly the ones exposed to the medical horrors that prompted the Plata/Coleman litigation in the first place–have preferred to see the medical system fixed without any need for litigation?

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Props to Caitlin Henry for bringing this to my attention.

Federal Panel to State: Plata Quotas Will Not Be Reduced

In a story that is getting surprisingly little press, today’s Reporter reported on the federal three-judge panel’s response to the State’s request to modify Plata requirement. The long and the short of it: The answer is no.

A federal three-judge panel has given California corrections officials until January to say how they will reduce the state’s inmate population to comply with an order upheld last year by the U.S. Supreme Court. 

The state must reduce its prison population by 33,000, to a maximum of 110,000 inmates, by next June.

Corrections officials say they cannot meet that goal if they follow through on their plan to retrieve inmates who are housed in private prisons in other states. They want to do that to save money.

 Bringing back those prisoners would put the state 3,000 inmates over the court-imposed cap. The judges said last month that they would not adjust the inmate cap. 

On Thursday, they told corrections officials to develop a plan to meet the June deadline.

Will the state make its deadline? How would this affect the plan to bring back out-of-state inmates? We’ll continue updating on this vein.

Judge Henderson Orders Continuation of Receivership

A lengthy battle has been fought between the California Department of Corrections and Rehabilitation (CDCR) and the federal Receiver, Clark Kelso. Long before Brown v. Plata, Judge Thelton Henderson placed the entire prison medical system in the hands of a federal receivership. There has been some noticeable improvement (some investigating reporting revealed mixed results), but the court, deciding that overcrowding in prison impeded more improvement, kept the receivership in place while ordering the State to decrowd prisons. The State has been repeatedly asking the court to end the receivership and criticizing the Receiver’s spending; the Receiver has consistently asked to sever health care from CDCR. And, as of yesterday, this is officially NOT OVER. The Los Angeles Times reports:

In an order issued Wednesday, U.S. District Judge Thelton Henderson said he would require tougher reviews than the state wanted before agreeing to dissolve the receivership that has run inmate medical care for six years. 

“Evidence of progress made under the direction and control of the receiver does not constitute evidence of [the state’s] own will, capacity, and leadership to maintain a constitutionally adequate system of inmate medical care,” Henderson wrote. California officials have “not always cooperated with, and have sometimes actively sought to block, the receiver’s efforts.”

Would Judge Henderson be more willing to bring the Receivership to an end if the state seemed more ready and willing to comply with the population reduction order, which it now seeks to change? For the court, quality of services is inexorably tied to prison population. But if services improve as population dwindles, is that evidence of the state’s ability to provide quality health care, or a testament to the Receiver’s efforts?

But there’s more here. This is interesting to me because the debate over the quality of prison health care has drawn attention to a special population of inmates: The old and the infirm.

In their 1992 article The New Penology, Malcolm Feeley and Jonathan Simon speak of a change from a correctional regime that aspired to deter or reform inmates to a managerial, actuarial, risk-management regime that merely aspires to efficiently warehouse inmates. This regime is characterized, in part, by “selective incapacitation” – creating a continuum of institutions to house people according to the risk they pose.

I submit that we still classify and categorize inmates, but these days our attention focuses on a slightly different criterion for incapacitation: Cost. Where our legislative energy has focused on groups we deemed, justly on unjustly, to be dangerous (like sex offenders and habitual offenders), we now consider the expense involved in incarcerating groups of people. This has been evident in the dynamic of incarcerating juveniles vs. adults, and it has also been evident in our approach toward Three Strikers. The latter are, in fact, a fairly small percentage of the prison population (about 8,000 inmates in total), but they have spent a long time in prison, and are old and sick. This is important because a stunning percentage of California’s correctional budget is spent on health care. Several states have considered, and enacted, provisions for geriatric parole (CA has done so most recently in jails as well.) The use of GPS tracking devices for ill inmates has become more prevalent. And, while members of the notorious Manson family still hold symbolic, horrified fascination that would impede their release even if they are very old and sick, we are more open to considering such solutions.

The intense battle between CDCR and the federal Receivership is an indication of the immense difficulties of administering passable health care to a large population, and as no end is in sight, legislature might need to think more seriously about handling its old and infirm prison population.

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cross-posted to PrawfsBlawg.

Plata: The County Jail Edition?

When people express support for the Realignment, it is because of the general perception that the state did such an abysmal job at housing inmates that counties would clearly do better. But is that really so?

Not according to the Prison Law Office, who has filed a health-care lawsuit in Fresno and contemplating another one in Riverside.

The nonprofit Prison Law Office and others are concerned that California’s realignment of prisons and jails – which has inmates serving time in county jails for crimes that in the past would have landed them in prison – may have simply shifted the state’s prison problems to the 58 counties and their jail systems. They warn there may be more suits to come.


“It’s not that these jails were doing well before; it’s just worse with realignment,” said Don Specter, Prison Law Office director. “In some ways, counties are worse than (state prisons) … and certainly the harm on prisoners who stay there longer is going to be greater.”

And then, of course, there are the counties who are doing a better job–“particularly those that have long made treatment, not prison time, a priority.” The story continues:


Marin County Sheriff Bob Doyle said not many people have been sentenced under realignment in that county, and those who have been have received relatively short, three- or four-year terms.


“The counties with the big problems with realignment, No. 1, already had space issues, and No. 2, have different sentencing practices,” Doyle said.


“We’re a county that since the 1980s has had a low incarceration rate,” he said, adding that Marin County developed programs in the 1990s as alternatives to locking people up. “We see realignment as an opportunity.”


Dr. Joe Goldenson, who directs San Francisco’s Jail Health Services, said the city also hasn’t seen overwhelming numbers of new inmates under realignment because it never sent many felons to state prisons in the first place. And, he said, leaders have consistently invested in jail health care “because they have always recognized the importance of providing care to this population.”

The only thing certain about the realignment is that nothing is certain; the counties’ different approaches will make or break this reform in terms of its impact on mass incarceration.

Sending the Incarceration Bill to Inmates

Image courtesy http://inmade.deviantart.com. 

The most marked feature of the fiscal crisis on the correctional landscape has been a decline in the overall punitive discourse, policies, and technologies. States are giving up the death penalty; California is realigning justice with a focus on the community; and issues that were not considered viable, such as drug legalization, are now on the public agenda.


But the fiscal crisis didn’t only bring punitivism reversals and silver linings. With the good, we got some bad and ugly. And the ugly is the topic of tonight’s post.


Three recent bills on the Assembly and Senate Public Safety Committee agendas are all about rolling the costs of incarceration on… you guessed it… the inmates themselves. Here are some of the particulars.

SB 1124 (Canella) Cost of Incarceration

Remember the little theatre of the absurd from Riverside County, expecting inmates to pay $140 per night for their incarceration? Well, this beauty is in the same vein. Penal Code section 1203.1m currently authorizes the court to order reimbursement for the cost of incarceration if it finds the defendant has the ability to pay. This new bill would require the court hold a hearing for each and every defendant sentenced to state prison to determine his or her ability to pay all or some of the costs of incarceration.

Keep in mind that defendants make very little money, if any, during incarceration, have very little by way of financial support from friends and family members, and most if not all lose their jobs as a consequence of incarceration. It is exceedingly difficult for a formerly incarcerated person to find a job after release. It’s therefore likely that many of these hearings would result in the unsurprising determination that a defendant would not be able to pay for his or her incarceration. This process then would result in an unnecessary expenditure of funds.

AB 2261 (Valadao) Cost of Medical Visits

Remember Brown v. Plata? Why didn’t all these wise judges think of the simple solution for the medical crisis in California prisons–charging the inmates themselves for their care? This bill removes the cap of the $3 fee a sheriff is allowed to charge for an inmate-initiated medical visit and would authorize a sheriff to establish an unlimited standardized fee. As opposed to the other travesties, this bill would require the defendants to pay while they’re in prison, where they make the princely sum of between 8 cents and 95 cents an hour. It’s rather likely, therefore, that this bill would discourage inmates from reporting illness, which has a number of costly and dangerous ramifications.
First, this bill is likely to provoke a lawsuit, and I’ll be first in line to volunteer my help. Readers from Prison Law Office or from Rosen, Bien and Galvan: If this becomes reality I’m happy to put together an amicus brief. This, of course, means that additional resources will be spent on a costly, lengthy lawsuit, which will undoubtedly end in a federal court finding this travesty unconstitutional. Why not save us all the cost and hassle?

Second, this bill poses an immediate public health danger to inmates, correctional staff, and the communities that will receive formerly incarcerated people upon their release. There is currently an epidemic (WC) of AIDS and Hepatitis C infections in state prisons and in poor communities to which formerly incarcerated people often return. California prisons have a Hepatitis C Virus infection rate of 40%.

Third, this bill may disproportionally impact people with chronic health conditions or mentally challenged inmates.


incidentally, if you’re wondering why you have to pay for health care and have your health care questioned by the Supreme Court while inmates enjoy free health services, you might want to read this. 

AB 2357 (Galgiani) Cost of Assisting Law Enforcement Investigation

Finally, this bill would authorize CDCR to require an inmate be temporarily removed from a facility to assist with the gathering of evidence and impose a fee for the removal. Current law allows for inmates to be temporarily removed from their cells to attend college classes, but this bill would replace that opportunity for mandatory assistance with an investigation.

The scenario in which an inmate may be assisting law enforcement with the unveiling of potential suspects could put an inmate at risk of retaliation. This is a significant burden to place on inmates, who will likely not be willing to participate, let alone contribute their own meager funds to the investigation.

Incidentally, the CCPOA is all over this already. 

These are all exceedingly disturbing scenarios. There can be a debate about which aspects of incarceration constitute cruel and unusual punishment, but asking you to pay for punishment, even if it’s kind and usual, is absurd.

Gruel and Unusual Punishment

Photo courtesy Andy Duback for the Associated Press

The curious item in the picture to the left is Nutraloaf, a meal served in prisons and jails around the nation. Time Ideas has a piece today about a recent 7th Circuit case, in which Judge Posner thought that a Milwaukee inmate might have an 8th Amendment claim based on this meal.

A culinary review in Chicago Magazine reads as follows:

The mushy, disturbingly uniform innards recalled the thick, pulpy aftermath of something you dissected in biology class: so intrinsically disagreeable that my throat nearly closed up reflexively. But the funny thing about Nutraloaf is the taste. It’s not awful, nor is it especially good. I kept trying to detect any individual element—carrot? egg?—and failing. Nutraloaf tastes blank, as though someone physically removed all hints of flavor. “That’s the goal,” says Mike Anderson, Aramark’s district manager. “Not to make it taste bad but to make it taste neutral.” By those standards, Nutraloaf is a culinary triumph; any recipe that renders all 13 of its ingredients completely mute is some kind of miracle.


I ate two-thirds and gave up, longing for any hint of flavor, even a bad one. That night, my stomach’s rebellion against the loaf was anything but neutral. I felt so full and lethargic that I skipped dinner and the following breakfast. And let’s just say I finally had a lot of time alone to catch up on my New Yorker reading.

In the fall, we hosted a day about food deserts, and our panel included a CDCR nutritionist. The meals we were shown on the slide show looked a lot better than Nutraloaf, albeit our guest admitted they might not be representative meals. We also had a chance to talk about the importance of food for pleasure and comfort, not just a requisite for health. Have incarcerated Californians experienced Nutraloaf or anything like it? Tell us.

“Unnecessary” Medical Treatment Ban Passes Senate Committee

The Senate Committee passed today SB 1079, initiated by Democrat Senator Michael Rubio. The proposal, whose full text is here, would amend the Penal Code to prevent CDCR from providing medical services unless they are “based on medical necessity and supported by outcome data as effective medical care.” The proposition gives the treating physician the discretion whether to provide a certain medical treatment.

This, in itself, is interesting. In the lacuna created by the end of the Receivership health services, questions about the quality and quantity of medical services are bound to arise. And, one of the trends stemming from the financial crisis is saving on health care. But wait, there’s more; SB 1079 provides a list of treatments that it deems “medically unnecessary.” Some highlights follow:

  • The proposal proclaims that mononucleosis and mild sprains “improve on their own without treatment” and therefore will not be treated.
  • The proposal proclaims that some conditions are so severe that they don’t respond well to treatment, and will therefore not be treated, and includes in the list multiple organ transplants and grossly metastatic cancer.
  • Then, we are regaled with a list of conditions that are “cosmetic;” some of these include conventional plastic surgery, but some of them include surgery for the purpose of sex reassignment and removal of tattoos (which could save someone’s life in a prison environment for obvious reasons.)
  • And finally, we’re explicitly told that gender reassignment surgery is not “medically necessary.”
  • Interestingly, the proposal goes as far as to explicitly rule out acupuncture and other methods, expressing not only a preference for Western medicine, but also a rejection of techniques that may be preventative and might actually save the state money in terms of disease prevention.
I’m dismayed, particularly about the classification of gender reassignment as not “medically necessary.” Try and tell a trans woman who is serving her sentence at a men’s prison that reassignment is not essential not only to her health, but to her immediate safety and well being. People do not pursue these operations on a whim; they do so because their gender expression does not match who they really are, and in a prison environment, it can save them from rape and torture. This is proposal, of which Michael Rubio brags on his website, is deplorable and should be protested and fought.

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Props to Caitlin Henry for alerting me to this.

Aging Inmates Cared For by Other Inmates

Photo courtesy Todd Heisler for the New York Times.
This weekend’s New York Times features an article on the California Men’s Colony, where some inmates–some of them convicted killers–care for elderly inmates suffering from dementia. 
The story has a financial angle, too. Teaching some inmates to care for others is a cost-saving measure, in addition to its other virtues; but it is also a reminder of the expenses involved in incarcerating aging inmates, whose lifestyle makes them age faster than non-inmates, as found in this report from Vera Institute of Justice.
With many prisons already overcrowded and understaffed, inmates with dementia present an especially difficult challenge. They are expensive — medical costs for older inmates range from three to nine times as much as those for younger inmates. They must be protected from predatory prisoners. And because dementia makes them paranoid or confused, feelings exacerbated by the confines of prison, some attack staff members or other inmates, or unwittingly provoke fights by wandering into someone else’s cell.
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Props to Zafir Shaiq for the link.

Death in Corcoran


A recent episode of Democracy Now! features an inquiry into the death of Christian Gomez, 27, an inmate at Corcoran State Prison, who passed away six days after the beginning of the hunger strike. His sister, Yajaira Lopez, is calling for an investigation to what happened inside the prison and for conditions to be drastically improved. “When he did get [to Corcoran State Prison], he did explain to us that he was participating in a hunger strike,” Lopez explains. “They were fighting for fair treatment.”

Also interviewed is Carol Strickland of the Prisoner Hunger Strike Solidarity Coalition and Prisoners With Children, who reports having heard that “people were not getting medical care who were on hunger strike and that that’s been something that we saw previously, as well, that the medical care is withdrawn, in many ways. Medications are stopped, and people are not being cared for adequately. And one has to ask, how can this man basically drop dead, you know, after only
a few days of a hunger strike, when he’s under medical care?”

BREAKING NEWS: Judge Henderson Orders End of Receivership

Today, Judge Thelton Henderson of the U.S. District Court expressed satisfaction with the improvements to prison health care, and ordered the federal Receiver, Clark Kelso, to report by april 30th when the receivership should end and whether the prison health care system will remain under federal oversight.

The Associated Press and the San Francisco Chronicle report:

The ruling marks an important milestone in a process that began nearly six years ago when the judge appointed a receiver to run California’s prison medical system after finding that an average of one inmate a week was dying of neglect or malpractice. He cited inmate overcrowding as the leading cause, but said in Tuesday’s order that conditions have improved.


He praised the better conditions throughout the system, particularly noted during inspections of medical facilities by the prison system’s independent inspector general.


“Significant progress has been made,” Henderson wrote, citing the receiver’s own report to the federal court last week. “While some critical work remains outstanding — most notably on construction issues — it is clear that many of the goals of the Receivership have been accomplished.”

While the Prison Law Office expressed concern that the Receivership’s end is premature, it might be a wise thing to start preparing for the shift in health care with the realignment. Counties will have to incur some of the costs for inmates’ health. But it’s worthwhile to remember that serious offenders, who usually serve more time, will remain in state prisons, and their lengthy prison sentences also implies that they age in prison and thus require expensive care.

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Many thanks to Brooke McCarthy for alerting me to this.