New San Quentin Hospital Opens

As reported by the Associated Press on Seattle Pi:

The receiver who once ran California’s prison health care system promised three years ago that he would use his court-backed muscle to build a new medical facility in record time.

The pledge has come true with the opening of a $136 million, five-story hospital at San Quentin State Prison – four months earlier than its ambitious schedule and $10 million under budget.

Yet the state-of-the-art facility already is a relic from a time when California had money and the federal receiver could act with impunity. Its aggressive advocate, receiver Robert Sillen, is gone, too.

Officials showed off the 50-bed hospital and its dental, medical and mental health outpatient clinics in an exclusive tour for The Associated Press last week, even before it was seen by top state officials. Parts of the facility are already in use and the rest are scheduled to open in January.

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props to Jerry Jarvis for the link.

Decline in Inmate Death Rate; Rise in Preventable Deaths

The Federal Receiver’s office has recently released information regarding the 2008 inmate death reviews. According to the report, there is an overall decline in inmate deaths, from 248.6 to 215.5 per 100,000 inmates.

Out of a total of 369 deaths, 122 – the largest category – were due to cancer. Suicides, accounting for 38 deaths, come in second as causes of death. The report classifies 17% of deaths as “possibly preventable”. Out of the 303 non-preventable causes, cancer, suicide, and liver disease are the leading causes, which, as the report states, are “not unexpected given the high incidence of smoking, drug abuse and depression in the incarcerated population”. Out of the 61 possibly preventable deaths, cancer, sudden cardiac arrest, and pneumonia top the list. The most common lapses in care identified by the report are misdiagnosis (81 cases) and lack of access to appropriate care (25 cases). The report finds strong causal connections between the identified lapses in care and preventable deaths.
The report also provides some interesting discussion of preventability, which, as it states, is “in the eye of the beholder”. The multiple lapses of care are, of course, a cause for concern, but I for one am thankful for the transparency of information.

Privatization – the answer to rights violations?


San Diego Correctional Facility image courtesy ACLU.org.

The state’s willingness to rely on privatized institutions as a partial contribution to population reduction might be a questionable choice when the final aim is improving medical and mental health in prisons. This is especially true when considering complaints regarding health care and improperly unreported deaths in privately-run institutions. The August 20 New York Times article raises important questions about record keeping, treatment, staff qualifications and staff presence at a Corrections Corporation of America institution designed to keep undocumented immigrants.

Currently, CCA runs two private correctional facilities in California: the low security California City Correctional Center and the minimum/medium security San Diego Correctional Facility. The former is advertised, in a Ventura County brochure, as a source of employment for 551 locals and a source of affordable land. The latter institution–just like the one featured in the New York Times piece–was recently sued over lack of medical care, as reported on the ACLU website.

State Plan a Mix of Releases and Correctional Expansion

I’ve just finished going over the CDCR population reduction plan in all its more-than-100 page glory (including the depositions). For those who rejoiced in the original August order to reduce population, the plan will be a disappointment; but even those who found the panel’s reasoning problematic will find little cause for rejoice.

Here are the essentials: The state stands behind the measures it proposed previously, in the noncompliant plan submitted September 18. Those included credit enhancements for good behavior, a certain quota of inmates housed in out-of-state facilities, more reliance on community corrections, sentence commutation, and parole reform (including the recently approved summary parole for nonviolent offenders).

In addition, the state proposes to seek changes to legislation that impedes broader use of the out-of-state option, privatization, shifting jurisdiction to county jails, and accelerated construction of prisons. It does so while expressing doubts about the federal panel’s authority to require violation of state laws; according to the state, therefore, these measures are necessary to bring the plan to the 137.5% reduction level.

The depositions provide concrete numbers regarding the reduction rates.

Jay Atkinson (Chief of Offender Information Services Branch) estimates that the California Community Corrections Performance Incentives Act of 2009 generates a system of rewards for probation success. Implementing it will achieve an approximate reduction of 1,915 inmates. In addition, releases based on good behavior credits will yield 2,921 reduction; raising the threshold of grand theft from $400 to $950 will yield a 2,152 reduction; and programs for alternative custody for low-risk offenders will achieve a 4,800 reduction. My summary: 11,788 total reductions. Atkinson cannot provide estimates for the reductions resulting from parole reform, but those may yield additional reductions.

Scott Kernan (Undersecretary of Operations) states that, by approximately January 2011, CDCR anticipates housing a total of 10,468 inmates at out-of-state facilities. In addition, it will push to remove an existing clause that mandates termination of the out-of-state program. Changing this clause will allow the state to expand its out-of-state program by 1,500 beds by December 31, 2011. In addition, the state plans to pursue privatization options more aggressively (the out-of-state options themselves are privatized.) Contracting with private facilities will provide an additional 5,000 beds for inmates removed from state institutions. Finally, CDCR will engage in a complicated game of musical chairs, which will involve shifting inmates around, switching between male and female inmates in some institutions, closing down 3 male facilities, and creating more community correctional facilities. This option will yield no more than a 800 inmate reduction. Total seems to be 17,768. Combining the two statements, the grand total seems to be a 29,556 reduction.

I haven’t checked up the math on the additional 10,000 reduction, but the plan suggests that this will be achieved through a combination of programs: commutation sentences, changes in juvenile facilities, and other measures that were mentioned in the original plan.

***

As can be seen by these two contrasting depositions, the state is pursuing two “prongs” of overcrowding solutions: the type that the court wished to encourage – namely, early releases, parole reform, and sentencing reform – and the type that the court will be very disappointed in, such as increasing prison construction and shipping more inmates out of state. Interestingly, these measures are predicted to yield more reductions than shuffling people within the existing incarceration options. The plan has, therefore, a bit of a “split personality”. Some of it expands the penal monster and some of it works to decrease it (in the spirit of humonetarianism.) I assume the court will be rather dismayed by this. Leaving the reduction methods up to the state opened the door for the state to cling to the old solutions of expansion, contraction, and exporting Californians to other states; but since the panel was convened for the sole purpose of solving the problem of constitutional violations in health care, its ability to have a general say regarding the system’s size is rather limited.

***

There is another issue which, while not directly yielding reductions, merits attention. At the panel’s request, the remaining depositions describe the impact of cuts to rehabilitative programs on prison conditions.

Sharon Aungst (Chief Deputy Secretary of the Division of Correctional Health Care) states that the decrowding will not improve treatment for the mentally ill, but the cuts in rehabilitative programs will have an adverse effect on weekly activities for mentally ill patients.

Robert Ambroselli (Acting Director, Division of Adult Parole Operations) estimates that the parole sites and programs have served a combined 18, 449 people, though some of these may be repetitive (enrolled in more than one programs). The expected $41,000,000 reduction in operational budget will lead to delays in finalizing and activating new sites.

Finally, Elizabeth Siggins (Acting Chief Deputy Secretary for Adult Programs) states that the budget cuts will lead to a significant reduction in treatment slots. 4,633 inmates (a 5000 reduction) will be benefitting from community-based aftercare treatment. Substance abuse programs will be available to 1588 inmates (4000 reduction). There will not be changes to in-custody drug treatment, the parolee service network (serving 863 inmates) and the female offender treatment and employment program (serving 412 inmates). 80,000 parolees will be getting employment opportunities through California New Start.

***

These are grim news indeed. It would appear that, over the next few years, possible gains with regard to health care will be offset by losses in terms of rehabilitative programs. The panel’s program to reform California prisons through the opportunity to intervene in health care seems to have been frustrated by the methods adopted by the state.

A final thing to remember is that the state’s plan is not to be construed as abandonment of its appeal to the Supreme Court. The state consistently repeats, throughout its legal documentation, the right to appeal the order, which it still maintains is erroneous. Given the particulars of the current plan, it remains to be seen whether the Supreme Court will see the panel’s attempt to fix the health care system in a favorable light. It is a sober reminder, though, that judicial review of state institutions is an imperfect and limited solution, and while it has the ability to change policies and practices in ways that are impossible through legislative and administrative channels, its narrow, case-by-case focus may have unpredictable, and disappointing, outcomes.

TODAY: Decrowding Plan Deadline

Today is the deadline for the state to submit its decrowding plan to the Plata/Coleman panel. No indication so far as to whether it will comply and what the plan will look like. As a reminder, per the October 21 order, should the state fail to submit a plan, the court will turn to the petitioners for an alternative plan. Contempt proceedings, which were stayed, are a very remote possibility (plus, one might mockingly say, prisons are already full). Stay tuned and we will provide updates by tonight or tomorrow.

The Game Is Afoot: CDCR Submits Bed Plan

… and back to California.

The 21 days are up, and today, the CDCR filed its plan for medical and mental health beds, which, it is argued, complies with the Plata/Coleman requirement.

I have not yet seen the full detailed plan, but there is a list of projects whose aggregates will provide a number of beds. Funding for the project comes from AB 900, which enables prison construction and improvement, and facilitates fund transfer for such projects.

This is an interesting CDCR move in the Plata/Coleman chess match. As you may recall, the original Plata/Coleman order was very skeptical of prison construction as a possible solution to overcrowding, but the wording in the order left a narrow opening for such a solution. In fact, it went as far as to say:

Although it might be theoretically possible for California to build its way out of its prison overcrowding problem, it is not practical to anticipate that the state will do so in a timely manner, if ever, given “the time that it takes and . . . the huge costs that it takes to do things like this.” . . . Nonetheless, because our order requires defendants to reduce the prison population to
a specified percentage of the prison system’s design capacity, any additional capacity provided by completed construction could help the state meets its obligations and might allow it to increase the number of prisoners who could constitutionally be housed in the prison system. In such case an adjustment as to the specific terms of the population reduction order, although not to the percentage cap itself, might conceivably be appropriate. We see little prospect for such an occurrence, however, in the reasonably near future, andthus no prospect of remedying the constitutional violations in a timely manner, other than in accordance with the order we issue below.

Now, it seems that CDCR is walking through that narrow opening, and to some extent frustrating the possibly broader agenda of the Plata/Coleman panel, which, as the state argued upon the issuance of the initial order, was to use the medical crisis to make some progress on the broader overcrowding problem. It is a strong, and problematic, statement to make: since you are forcing us to comply with the order, we’ll comply with it in the way least convenient to you, the budget, and the prison crisis. Look at what you’ve made us do.

Stay tuned. There will be more.

**** updated to add: I counted days again. It seems that the 21 days aren’t up yet; they end on Nov. 11. The state might still come up with a population reduction plan irrespective of the prison construction plans in this proposal. ****

Plata/Coleman Panel: We Were Not Fooled

Here is the order’s text, placed on a free hosting service for your convenience. The bottom-line message from the panel: We were not fooled by all the chatter and alternative proposals going on. We read the newspapers. Deliver a plan that complies with our requirements within 21 days.

The panel starts by expressing extreme displeasure with the state’s non-compliance:

Rather than reducing the population of the CDCR’s adult institutions to 137.5% of their combined design capacity within two years, it provides for a reduction of the population of those institutions to 166% of their combined design capacity in that period. Additionally, defendants’ plan fails to set forth effective dates for the various actions proposed and fails to provide estimates of the reduction in population they expect to achieve after six, twelve, eighteen, and twenty-four months; instead, it provides estimates of the fiscal year in which actions may take effect and estimated population reductions for each fiscal year through 2014/15. In light of these inadequacies, defendants’ September 18, 2009 Population Reduction Plan is REJECTED.

The panel then responds to the petition for contempt:

Plaintiffs’ response urges this court to initiate contempt proceedings against defendants on the basis of their failure to comply with our August 4, 2009 order. Action on this request is STAYED pending further proceedings detailed below.

The order requires defendants to submit a compliant plan, including explanations of their calculations and projections of reduction. It also addresses a few additional interesting matters:

1) On Sep. 17, CDCR issued a press release regarding rehabilitative program cuts, some of which were mentioned in their plan as essential for the reduction. The panel is referring to this press release, issued only one day before the submission of the reduction plan. What is up with that? asks the panel. Please let us know how this impacts any reduction measures you propose that rely on rehabilitation programs.

2) The panel wants to hear more about the use of rehabilitation and reentry in the community as a population reduction measure that might actually improve public safety.

And most importantly, in my opinion, (3): The panel is well aware of Governor Schwarzenegger’s reduction plan, which, as avid followers of this issue may recall, was submitted to legislators, approved in the CA Senate, and then gutted in the CA Assembly. How does that plan match up to the one the state submitted? Would it really lead to a population reduction? Secretary Cate’s involvement in the plan was widely reported in the press, says the panel. We read the papers. If this plan has promise, tell us how you’ll try to fold it into compliance with our order.

I like the panel’s reasoning quite a bit. It’s a well-informed, no-nonsense order, which is keenly aware of the political and legislative realities that occurred since the original August 4 order was issued. Number (3) above is a masterpiece of political maneuvering. First, recognizing that the original Schwarzenegger plan had some promise before it was gutted by the Assembly, and that it was supported by Cate, the panel gives CDCR an honorable path of retreat. If, indeed, this plan is folded into the new submission ordered by the panel, it will be a plan that the state has already stood publicly behind. Second, it is a brilliant hint on which direction to go, subverting the failed legislative process: Governor Schwarzenegger gets exactly what he wanted, except he gets it through compliance with judicial authorities rather than through the Senate and Assembly. And third, with the state backing the new plan, the order is more secure against appellate review from the Supreme Court.

Now we wait for 21 days, and we’ll report further.

BREAKING NEWS: Plata/Coleman Panel Displeased with State Plan

The Sac Bee reports:

Three federal judges on Wednesday rejected the prison reduction reduction plan submitted to them by the state and gave the Schwarzenegger administration three more weeks to produce a plan that complies with their wishes.

If the court doesn’t get one by Nov. 12, the judges said they will order attorneys who represent sick inmates to submit a plan by the end of November, and the judges would order that plan be implemented.

More coverage from KPCC, including an interesting interview with Don Spector, is here.

The inmates have filed for contempt. The court’s show of displeasure is less drastic (we predicted slim chances for an actual contempt ruling), but nevertheless, it puts the state in an uncomfortable position. I tend to agree with Jonathan Simon that justifying the new plan as one that keeps public safety in mind is preposterous given the order’s language. I also find the court’s position strengthened by the lack of stay from the Supreme Court (whatever that might mean on the merits). Stay tuned.

Contempt or Cooperation?

Given the State’s population reduction plan, which falls short of the Plata/Coleman order, the question becomes: What can the court do, and what should it do?

I find the latter question much more interesting than the former. We know that courts have the authority to send one to prison for contempt, sometimes not as reasonably as one would hope. But I don’t see how that would be helpful in any way in this situation. But what about monetary penalties? Or asking for adjustments to the order?
There are various complicating factors here. On one hand, as Judge Karlton explained in his luncheon address at our conference last March, this is the last in a long series of problematic interactions between the state and federal courts regarding corrections and constitutional rights. Faithful followers of the crisis will recall how close the court was to hold Governor Schwarzenegger in contempt for not providing the receiver with funds to improve health care.
On the other hand, even the Plata/Coleman decision acknowledged that, while the state was late to respond to court requirements in the Coleman case, state officials eventually did cooperate with the special masters. Given the dramatic implications of federal intervention in prison population management, the court would prefer cooperation and, possibly, an incremental improvement of the proposed plan, to an adversarial step that will alienate the state even further.

CA Plan Falls Short of Reduction Order

The expected plan is much closer to the original Governor’s plan. The AP reports (with interviews with Michael Bien and yours truly):

Instead of 40,000 inmates, the state’s plan is expected reduce the population by about 25,000 over two years, according to those who were briefed on the plan. Details were to be released late Friday afternoon.

The state already has taken steps to get part way to the goal.

Earlier this month, the Legislature voted to use a variety of methods to reduce the prison population by 16,000 inmates as a way to save nearly $1 billion in this fiscal year’s state budget. Corrections officials also are expected to recommend transferring additional inmates to prisons in other states and adding more beds under a prison-construction program previously approved by the Legislature.