Book Review: Inside This Place, Not Of It

A new title from Voice of Witness, Inside This Place, Not Of It, provides a series of narratives based on interviews with incarcerated and formerly incarcerated women. The book personalizes the background stories of women in prison, their experiences within walls, and their difficulties upon release.

The editing is graceful, light-handed, and almost invisible, making the stories ring true and fresh, as if the reader is sitting in the room with the speaker. Most of the time, the editors’ hand is only seen in a helpful introductory paragraph, and the quality and sensitivity of the interviews themselves shines through the stories. There is something very genuine about some women’s willingness to discuss the offense that brought them to prison, and others’ reluctance to elaborate on the more difficult parts.

A few common themes emerge. So many of these stories begin with familial neglect and abuse, set in a general environment of deprivation and discrimination. The balance between being a product of one’s environment and having personal responsibility for one’s actions is delicate, but many of the interviewed women are very thoughtful and reflective, and provide a nuanced understanding of their actions in the context in which they were committed.

The two most alarming aspects of the narratives, for me, involved seldom-highlighted aspects of women’s imprisonment. The first is the truly shoddy health care system. Shocking stories of giving birth while shackled and being separated from one’s baby, receiving a mistaken HIV diagnosis that remained uncorrected for years (and treatment for it), having one’s diabetes untreated and undiagnosed, callous carelessness about the possibility that an inmate might lose all her teeth, repeat themselves throughout the book.

The other aspect is the frequency with which sexual abuse by guards occurs in the prison environment. Many women report sex with guards under physical coercion or lack of choices, and for many of them, speaking up and complaining entails harsh retaliation and isolation from the prison staff as well as the inmates. Popular culture tends to focus on rape and sexual assault among inmates. It would appear that assault and exploitation on the part of staff requires much more serious and urgent attention.

The book also includes a series of great appendices, providing solid, readable information about topics such as the Prison Litigation Reform Act (PLRA), health care issues, and the incidence of prison rape. I can’t recommend this enough as a great, honest window into lives seldom discussed publicly.

The Myth of Free Health Care for Inmates

In the last weeks I have been giving talks about various aspects of California corrections in universities all over the Bay Area. Interactions with college students are refreshing and interesting, especially as local elections are rolling in.

One argument I’ve heard a few times now in these discussions has to do with bitterness about the fact that inmates receive free health care, while those of us on the outside pay for our health care out of pocket. That this argument persists in the face of the Brown v. Plata aftermath is a grim reminder of the misinformation out there. For the benefit of those of our readers who hear this argument made in their immediate vicinity, or who have made this argument, here are some ways to answer it.

First, any complaint about inmates’  “free health care” begs the question whether what they receive in prison is, in fact, health care. The medical system in California prisons is so broken and inept that it was handed, several years ago, to a federal receiver. The budgetary woes have consistently hindered the receivership’s efforts to reform the system. And, eventually, the Supreme Court affirmed a three-judge federal panel decision to release tens of thousands of inmates because health care could not be provided given the overcrowding status of the prison. The bottom line, according to Jeanne Woodford, is that short-term inmates receive exams and an intake, and little beyond that. The Supreme Court decision and the brief appendices cite numerous examples of unnecessary disease and preventable death in California institutions. No, this is not comparable, by any standard, to whatever health care you might be receiving on the outside.

Second, the requirement to provide inmates with health care in prison stems from the fact that the government put them there. Warehousing people against their will is one thing. Doing so without caring for their basic needs is quite another. Some argue, of course, that this could be done more cheaply and efficiently. Much of the expense stems from the fact that we insist on imprisoning elderly, infirm inmates. The financial crisis is finally making us rethink this policy. And, by the way, check out Legal Services for Prisoners with Children’s initiative on behalf of old prisoners.

Third, apparently the free health care for inmates idea is no longer the universal rule. Much to my horror, I find that in some places, apparently, this is no longer the case.

As a coda, ever since I relocated to the United States I have been perpetually astonished at how little people in this country expect from their government. The argument against free health care for inmates is saddening because of its focus not on what you deserve to have, but on what someone else does not deserve to have. We talked about this “othering” of criminals before. Why not insist on being provided national health care at low or no cost, as is the case for every other industrialized democracy? The spite and bitterness against inmates is a distraction from a common goal, which is to be treated decently and fairly and being taken care of by one’s government, and it is proof that just and reasonable citizen expectations can be confounded if people are presented with an enemy to hate. I urge Californians to look beyond these divisive mechanisms and really think about their expectations from their leaders.

CDCR Medical Policy Regarding Hunger Strikers

More on the health concerns regarding the strike: Policy 4.22.2 of Prison Health Care Services, updated on September 29, 2011, details how inmates are to be treated during a hunger strike. Upon the beginning of a strike, participants’ baseline weight and height are to be established, and a follow-up spreadsheet is created. Prison authorities are to follow up on participants’ health and weight. The regulations emphasize respect for participants’ autonomy regarding their health (feeding plans are to be offered, not coerced), and allow force-feeding in two cases only: An emergency situation or an inability to provide informed consent.

According to prison visitors, clinicians are monitoring inmates to keep an eye for any who may begin to show signs of starvation, but so far there have been no concerns. As of Sept. 30, 3,376 inmates in six prisons are on a hunger strike. They have missed nine or more consecutive meals since Monday, Sept. 26.

Institutions with hunger strike participants are:

  • Calipatria State Prison
  • Centinela State Prison
  • California State Prison-Corcoran
  • Ironwood State Prison
  • Pelican Bay State Prison
  • Salinas Valley State Prison

May the State Force Feed Hunger Strikers?

The CDCR memos did not provide a clear answer as to whether the authorities will seek a court order to force-feed striking inmates should the strike last long enough to jeopardize their health. During the July strike

I got to think about this a bit this week when I got a phone call from a reporter from the Examiner, resulting in this story. The man in question is not taking part in the Pelican Bay solidarity hunger strike, and apparently this is the last in a long series of hunger strikes he has undetaken individually. I am unclear on the extent to which hospital personnel felt comfortable force-feeding him, but apparently the sheriff is seeking a court order to do so.

Apparently, there is no clear answer as to whether, legally, hospital personnel may force-feed a hunger-striking inmate, and under which conditions. This has come up in the context of a large-scale hunger strike in Ireland in 1981, and later in the context of Guantanamo in 2005. A 2007 note by Tracey Ohm provides a concise summary of the law in the matter. In the early 1980s, the courts had ruled that the state had no right to intervene with a hunger-striking inmate, and it could allow him/her to starve him/herself to death; however, just a few years later the court tried to draw a distinction between a strike aimed at death and a strike aimed at a manipulation of the correctional system, with a right to intervene in the latter. Ohm suggests that correctional institutions adopt a four-part standardized test, based on the principles in Turner v. Safley (1987):

  1. A “valid, rational connection” between the prison regulation and the legitimate governmental interest put forward to justify it;
  2. the existence of “alternative means of exercising the right that remain open to prison inmates”;
  3. the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally; and
  4. the absence of ready alternatives is evidence of the reasonableness of a prison regulation. 

Cases decided after the publication of Ohm’s note, such as this Connecticut decision, this Illinois decision, and this Pennsylvania decision (also see this summary) have tended to allow prison authorities to force-feed inmates when there was imminent danger to their health or life. All decisions emphasize the need to grant a court order on a case-by-case basis. There doesn’t seem to be any California case law on the matter. This case may be the first time such an issue is tackled by California courts, and it’s worth following up not only because of the fate of the individual defendant, but because of the possible implications for Pelican Bay strikers and their supporters in other institutions.

Medical Parole Law in Action: The State Focuses on Expensive Inmates

SB1399, recently passed by the legislature, allows the state to grant inmates medical parole. It confirms sections already in the existing penal code, but note the cost-related rationale:

The California state prison health system has identified 21 inmates whose average annual health care and guard costs total more than $1.97 million apiece. This is approximately $41.4 million a year for the care of 21 prisoners. These inmates are located in off-site nursing facilities or hospitals which require paying guard time, even though these prisoners are severely incapacitated. Eleven other inmates are inside prison health centers, where their annual medical bills average $114,395 each. There are currently 1,300 California state inmates whose health care costs exceed $100,000 a year. Inmates released on medical parole would shift the cost of their health care from the state to the federal government as prisoners cannot enroll in Medi-Cal or Medicare, but paroles [sic] can.

CDCR news has reported granting medical parole to the 7th inmate since the passage of the law.

As I’ve said elsewhere, humonetarianism is not unlike the risk management regime that has permeated corrections in that it is busy conducting selective incapacitation and grouping people into categories. But note the shift in focus: Rather than focusing on risk as the dominant category for classification, we are now focusing on cost.  The cost-centered discourse and practice are shifting the way we look at the prison population. Rather than focusing on the high-risk inmates, we are focusing on the expensive ones as targets for reform and legislation.

Oh, and apropos costs: I’m working on a book that examines the impact of the financial crisis on the American correctional landscape, focusing particularly on California. Basically, it would be a book about humonetarianism. Your thoughts and contributions about this fascinating phenomenon, which I’ve been documenting here for the last two and a half years, are most welcome.

Leveraging Brown v. Plata to Achieve Correctional Health? Humonetarianism from Vera’s Michael Jacobson

Today’s Bloomberg News features a piece by Michael Jacobson of the Vera Institute of Justice, who is making points akin to the ones we made in the aftermath of Brown v. Plata. Yes, the decision was limited to the issue of medical services, but it is a grand opportunity to heal California’s broken corrections. Here are his operative suggestions:

Fortunately, there is a way to deal with this influx safely and humanely. Over the past three decades, jurisdictions across the U.S. have ensured that only those who present a genuine threat to public safety fill prison beds, while those who can thrive with supervision and services in the community get the help they need. California officials can begin emulating three steps, starting immediately:
— Statistical analysis has made it possible to accurately predict who is likely to commit new crimes and who isn’t. California officials, especially at the county level, should put in place risk assessment instruments based on this data to decide who needs to be held and who can be supervised safely in the community. Research has shown that overpunishing offenders who present little risk will in many cases turn them into real threats to public safety. Scarce taxpayer dollars need to be used explicitly for strategies and programs that we know will reduce crime, and not increase it.
— Invest in a network of community-based services that can serve those released under supervision, including formerly incarcerated people. Workforce development programs or drug treatment can go a long way toward ensuring that people can remain safely in the community. For instance, in a multiyear evaluation of the Center for Employment Opportunities, a transitional jobs program for former prisoners based in New York City, the nonpartisan education and social policy research organization MDRC found significant drops in recidivism, with the strongest reductions for former prisoners who are at the highest risk.
— Strapped local officials should resist the understandable temptation to use the money that accompanies redirected inmates and parolees for other needed programs, including general services that are being cut. Although public safety need not be as expensive as we currently make it, it can’t be done on the cheap. Besides, the Justice Reinvestment Initiative of the Department of Justice is designed to show that a shift in spending from incarceration to policies like those listed above actually makes communities safer.

As we argued elsewhere, one of the dangers of cost-oriented discourse is its fallacies in encouraging long-term health of the correctional system and its proclivity toward panicky, immediate solutions. The key to leveraging the cost argument to achieve correctional health is to think smarter, not faster.

Haney on Psychological Consequences of Imprisonment in California

Today I attended a compelling lecture by Dr. Craig Haney of UC-Santa Cruz on the individual psychological consequences of imprisonment in California. His talk was especially well-timed after Dr. Haney was cited six times by the U.S. Supreme Court’s recent decision in Brown v Plata. You may also recognize Dr. Haney as the lead author of the famous Stanford prison study from 1973, in which twenty healthy males, evenly divided into groups of “inmates” and “guards,” acted so brutally that the 2-week experiment was suspended after 6 days.

Since then, Dr. Haney has spent over 30 years touring and studying prisons and prisoners. He began with an overview of the recent expansion of the U.S. prison system, because overincarceration has led to Plata and “prisonization” (stay with me here). The U.S. rate of imprisonment stayed stable around 200,000 from World War I to the mid-1970s, when the War on Drugs sentencing mentality started. From 1973-1993, the CA crime rate hovered around 100 per 100,000, but the incarceration rate increased from 100/100,000 to 350/100,000.

Dr. Haney pointed out that, being a generation older than me, he could still remember a time when prisoners had their own cells. Cellmates, or double-celling, was still seen as an abomination in the mid-1970s. His archives include letters from the prison wardens of 40 years ago, decrying this inhumane practice. Now, of course, prison cells house at least two inmates as a matter of course.

Prison used to aim to rehabilitate prisoners. Through work assignments, education, and other programs, inmates were taught useful skills or conditioned for better lives. In the mid-1970s, states began to veer away from this century-old aim: Haney referred us to Cal. Penal Code § 1170(a)(1), passed in 1976, which begins: “The Legislature finds and declares that the purpose of imprisonment for crime is punishment.” Half of CA prisoners released in 2006 had had no assignment whatsoever: no program, no job, no education. All those years, wasted. In 1973, prisoners averaged a 6th-grade reading level, and this is still the same today.

As recently as the 1970s, people suffering from serious mental health conditions were usually committed to mental hospitals for in-patient treatment. Nowadays, mental health patients are more commonly imprisoned. In the U.S., the rate of hospitalization of mental health patients has fallen from 450 per 100,000 residents over 15 years old in 1950, to only 50/100,000 in 1990. People who would be hospitalized in 1950-1980 are more commonly incarcerated in 1980-2010.

Dr. Haney used this background to discuss institutional history as social history. By taking over so many people’s lives, for so long, commonly at such young ages, the state has become not only a parent, but an abusive parent. Imprisonment retraumatizes inmates who have already experienced the trauma that led to their incarceration in the first place. Prisoners suffer tremendous institutional risk factors: abuse, maltreatment, neglect, an impoverished environment, diminished opportunities, exposure to violence, abandonment, instability, and exposure to criminogenic role models.

Haney’s last slide explained “prisonization” as a set of normal psychological responses to abnormal situations. Prisons create dependence on institutional structures and procedures: newly-released people may suffer a lack of volition and independence as they are separated from these strict regimens. Prisons damage interpersonal skills or even prevent future relationships, by engendering interpersonal distrust, “hypervigilance,” suspicion, emotional overcontrol, alienation, psychological distancing, social withdrawal, and isolation. Prisons diminish self-worth and personal value, and can result in Complex Post-Traumatic Stress Disorder — PTSD inflicted by slow, continuing trauma as opposed to a discrete event.

Women’s Institutions: Health Issues and Overcrowding

This weekend’s Huffington Post featured an extremely distressing story about California’s women institutions and the health and sanitation conditions in them.

The Human Rights Council report cited in the post provides some further distressing information but fails to properly state which of the facts relate to California prisons and which relate to federal facilities or those in other state. It seems like the particularly horrifying report about male staff members incurring sexual favors in exchange for providing basic sanitation products is from a 2009 report on federal inmates.

Here, however, is the bit that clearly identifies California inmates and institutions:

A number of additional challenges often result in tension and conflict among inmates and with prison staff. These include inadequate access to basic hygiene products, the high costs of telephone calls and, the inadequacy and sufficiency of the food served. This was a particular concern at the Central California Women’s Facility (CCWF) where interlocutors pointed out persistent deficiencies in terms of services and the hostility with which some guards respond to inmates. These challenges are further intensified by the overcrowding in the facility which was designed to hold 2,004 inmates but currently holds 3,686 people.

I wonder – nowhere in Brown v. Plata does the decision explicitly limit itself to men’s institutions. The number of inmates, I believe, is an assessment of ALL state institutions, not just men’s prisons. This week’s population report indicates that, at 168.9% capacity, women’s institutions suffer from an overcrowding problem that also exceeds the 137.5% established by Plata. I assume, therefore, that the population reduction will include these three facilities, and particularly CCWF, which is at 185.7% capacity.

Brown v. Plata Decision Analysis: Justice Kennedy’s Opinion of the Court

As per legal requirements, the Supreme Court reviewed the factual findings of the three judge panel using a standard of “clear error”, which allows them less leeway for intervention than in the legal findings, which are reviewed de novo. For this reason, the factual basis for the decision is quite familiar to those who read the original three-judge-panel order, but the legal analysis is rather extensive.

The decision outright rejects the state’s contention that the three judge panel was convened incorrectly, stating that the time that passed and the lack of relief necessitated this step. Documenting the standard of care, the abundant vacancies for medical and mental health staff, and the shortfall of resources, Justice Kennedy states that the court had waited long enough before recurring to this admittedly drastic step. Justice Kennedy supports and affirms the three-judge-panel conclusions that overcrowding was the dominant reason for the violations, as well as their conclusion, after considering many other options, that other remedial efforts had not borne fruit and therefore the only recourse would have to be reducing the population.

While the population reduction is of “unprecedented sweep and extent”, writes Justice Kennedy, “yet so too is the continuing injury and harm resulting from these serious constitutional violations.” Justice Kennedy devotes a large portion of the opinion to a detailed description of the overcrowded conditions, mentioning the San Quentin converted gym (the very first picture we posted on this blog.) He provides details of numerous incidents in which inmates received appalling mental and physical care. He also provides details of the history of both cases, Coleman and Plata, and how the various measures to which the state resorted throughout the years (including a special master for the mental health system and a federal receiver for the medical system) failed to improve conditions. In this part he relies extensively on data from the receiver and the special master, as well as in the three-judge-panel decision. His description of how overcrowding is a direct and indirect cause for the abysmal health care follows closely the original panel order, citing, among other factors, the unsanitary conditions and the reliance on lockdowns, both discussed extensively in the original order.

“To incarcerate, society takes from prisoners the means to provide for their own needs. Prisoners are dependent on the State for food, clothing, and necessary medical care. A prison’s failure to provide sustenance for inmates ‘may actually produce physical ‘torture or a lingering death’.’. . . Just as a prisoner may starve if not fed, he or she may suffer or die if not provided adequate medical care. A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society. . . [i]f the government fails to fulfill this obligation, the courts have a responsibility to remedy the resulting Eighth Amendment violation.”

As far as its practical implications, the decision is a mixed blessing. Readers looking for an unequivocal statement on behalf of decarceration will find its bottom line a bit more disappointing than it leads to believe. Justice Kennedy is cautious to mention, in the very opening paragraphs, that “[t]he order leaves the choice of means to reduce overcrowding to the discretion of state officials. But absent compliance through new construction, out-of-state transfers, or other means–or modification of the order upon a further showing by the State–the State will be required to release some number of prisoners before their full sentences have been served.” By framing the issue in this way, Justice Kennedy sets the stage for the state to avoid early releases by recurring to damaging, malignant techniques, which will only increase mass incarceration in the long run.

However, there are also more optimistic bits. Justice Kennedy seems fairly convinced by the evidence presented to the original panel about the possibility of reducing population without causing an increase in crime and endangering public safety. He also affirms the panel’s estimate as to the extent of the reduction. His words on that are a vote of confidence in the panel’s work, comparing their projection that a 137.5% capacity would be reasonable under the circumstances to the situation in other states and in the federal prisons.

Justice Kennedy is careful to cut the state some slack in the timing of its plan. He encourages the state to “move for modification of the . . . order to extend the deadline for the required reduction to five years from the entry of the judgment of this court, the deadline proposed in the State’s first population reduction plan. . . [t]he three-judge court, in its discretion, may also consider whether it is appropriate to order the State to begin without delay to develop a system to identify prisoners who are unlikely to reoffend or who might otherwise be candidates for early release.” For this purpose, an extension of time is encouraged. While some inmate advocates may scoff at this, it’s important to remember that, from now on, the state and the courts need to cooperate, and in the course of this long-term cooperation, many compromises will have to be made.

BREAKING NEWS: Supreme Court Affirms Plata Decision, Orders Decrowding

Today, the Supreme Court decided, 5-4, to uphold the three-judge panel decision in Plata v. Schwarzenegger (now Brown v. Plata). Justice Kennedy wrote the Opinion of the Court, which is very sensitive to the inmates’ plight, and orders the state, and CDCR, to reduce prison population by a considerable percentage (about 40,000 inmates).

A detailed analysis of the decision will follow later tonight, but for now, here are some important implications:

The majority decision gives the state a lot of leeway in the timeline of achieving the reduction. Justice Kennedy is willing to cut the state significant slack in timely reduction if there is evidence to show that efforts to decrowd are well under way. Contrary to the alarmist tone in Justice Alito’s dissent, mass early releases will not happen tomorrow.

The state has considerable discretion not just in when, but also in how, the reduction is to be achieved. Much to my dismay, Justice Kennedy explicitly offers two decrowding methods that I consider shortsighted and malignant: More prison construction (already happening) and more out of state incarceration (already happening). My hope is that the state will not make the huge mistake of relying on incarceration-increasing methods for a short-term reduction which will come back to bite us in a few years with an increased prison population, and will instead rely on benign methods: Sentencing reform, good credits, and parole reform.

More later.