Seven Nagging Questions about the Post-Plata/Coleman World

1. Is this really going to happen after the final decision, or will we all wait for the appeal, which will surely come?

2. If we are about to dramatically relieve prison overcrowding, how do we guarantee that people don’t end up back in prison anyway, due to parole violations, and with precious little reentry resources?
3. Doesn’t the decision render the release part of Prop 9 pretty much irrelevant?
5. How large is the backlash going to be?
7. If we’re worried about recidivism among released inmates, isn’t it better to systematically find out what works in the real world, rather than work with simplistic, imaginary models?
Do you have any nagging questions about the aftermath of the District Court’s decision? Please post them in the comments, and we’ll try and answer them together.

Coleman/Plata v. Schwarzenegger: Initial Insights

The full text of the District Court’s tentative opinion is here.

A few points of interest:

The court was basically faced with an issue of causality, namely, whether the health system’s conditions are due to overcrowding. It agrees with the Govt. that “the delivery of constitutional medical and mental health care in prisons is a complicated and ‘polycentric’ problem”. In doing so, the court is invoking a concept from Lon Fuller’s 1971 classic “The Limits and Forms of Adjudication“. But, interestingly, by invoking that concept it may be saying some difficult thing about its own ability to properly adjudicate this conflict. Fuller says:

Now, if it is important to see clearly what a polycentric problem is, it is equally important to realize that the distinction involved is often a matter of degree. There are polycentric elements in almost all problems submitted to adjudication. A decision may act as a precedent, often an awkward one, in some situation not foreseen by the arbiter. Again, suppose a court in a suit between one litigant and a railway holds that it is an act of negligence for the railway not to construct an underpass at a particular crossing. There may be nothing to distinguish this crossing from other crossings on the line. As a matter of statistical probability it may be clear that constructing underpasses along the whole line would cost more lives (through accidents in blasting, for example) than would be lost if the only safety measure were the familiar “Stop, Look & Listen” sign. If so, then what seems to be a decision simply declaring the rights and duties of two parties is in fact an inept solution for a polycentric problem, some elements of which cannot be brought before the court in a simple suit by one injured party against a defendant railway. In lesser measure, concealed polycentric elements are probably present in almost all problems resolved by adjudication. It is not, then, a question of distinguishing black from white. It is a question of knowing when the polycentric elements have become so significant and predominant that the proper limits of adjudication have been reached.

Has the District Court reached the “limit of adjudication”, beyond which it is engaging in managerial, rather than judicial, tasks? The panel judges do not think so. They go on to say:

[W]e believe that a polycentric problem can have a primary cause – a cause that underlies and affects nearly every dimension of the problem and that in this case must be substantially mitigated before the constitutional failure can be resolved. Evidence offered at trial was overwhelmingly to the effect that overcrowding is the primary cause of the unconstitutional conditions that have been found to exist in the California prisons. There is, for example, uncontroverted evidence that, because of overcrowding, there are not enough clinical facilities or resources to accommodate inmates with medical or mental health needs at the level of care they require. There is also uncontroverted evidence that, because of overcrowding, there are not enough clinical or custodial personnel to ensure that inmates with medical or mental health needs are receiving appropriate treatment, are taking the medications that they need to take, are being escorted to their medical appointments in a timely manner, and are having their medical information recorded and filed properly. Additionally, as the Governor has stated, and as the California appellate court has found, overcrowded conditions – the use of triple bunks in gymnasiums and other areas not intended to be used for housing, for example – have “substantially increased the risk of the transmission of infectious illnesses among inmates and prison staff.”

Another interesting bit is the role played by the medical system’s Receiver’s work in all this. As the court notes, the argument against releasing prisoners relies, in part, on attributing the conditions to other factors. As proof of this,

[t]he defendants argue that the work of the Receiver and the Special Master has significantly improved the conditions in the prisons, and that with more time the Receiver and California Department of Corrections and Rehabilitation (sometimes referred to as CDCR), as monitored by the Special Master, can remedy the constitutional violations without decreasing the prison population.

This is somewhat ironic, because the government seems to be relying on the quality of the Receiver’s work while, at the same time, trying to remove him from his position. The irony does not escape the court:

The defendants argue that the Receivership and the Special Master’s monitoring efforts constitute other “relief” short of a prisoner release order that could remedy the constitutional violations. But the defendants have opposed the Receiver’s work in Plata and are seeking the dissolution of the Receivership.

And it becomes even more interesting when the court goes on to protect the receivership by presenting the Receiver’s position regarding what is and is not possible to achieve in CA prisons:

The Special Master stated that although much has been achieved in the past eleven years, “many of these achievements have succumbed to the inexorably rising tide of population.” Pls.’ Exh. P-35. The Receiver stated in a letter to the Governor and legislators dated July 24, 2006, that “[i]t will not be possible to raise access to, and quality of, medical care to constitutional levels with overpopulation at its current levels.” Pls.’ Exh. P-55. In addition, of course, the Receiver’s ability to help ameliorate the overcrowding is currently seriously threatened by the defendants’ actions to cut off his funding and terminate the receivership.

Another interesting aspect of the decision is the court’s assessment of what level of capacity would constitute compliance with constitutional standards. The evidence cited in the decision points out to levels far above 100% capacity as “acceptable”.

One important argument made by the Govt., which does not seem to be adequately answered in the decision, is the economic impact of releasing tens of thousands of inmates into the job market without proper skills or a decent re-entry program. The court responds to the counties’ concerns by saying,

This, however, appears to be an existing problem regardless of whether the prisoners are released under the current regime or pursuant to the reform measures. More important, the Expert Panel found that, if CDCR were to adopt the recommended combination of earned credits and parole reform, it could save $803 to $906 million annually. These savings could be diverted from the current prison budget to fund community based programming, which would allow the communities to continue and expand the programs that they have described to the Court.

But, for the saved money to optimally provide systematic reentry programs, these need to be carefully thought out and created in an atmosphere of cooperation rather than contention. And what good might it do to release folks without a properly designed and funded guiding hand without reforming parole regulation to provide a sensible, consistent regime of assessing parole violations?

It is important to note that the order is a tentative ruling, meant to prepare the parties to the implications of the final order, which brings us back to Fuller and his polycentric problems. Part of the reason why adjudication is unsuitable, by design, to address such problems, is that adjudication is a zero-sum game; there are winners and losers. This might not be the best approach to solve the problem CA prisons face. Is the tentative order conducive to bringing all concerned parties together and seeking a sensible release and reentry regime?

Breaking News: Federal Judges Order Inmate Release

Today, the District Court has issued its decision in the prison overcrowding case we have been following for quite a while. As reported by Reuters, the gist of the decision is that —

As many as 57,000 could be let go if the current population were cut by the maximum percentage considered by a three-judge panel. Judges said the move could be done without threatening public safety — and might improve a public safety hazard.

The state immediately said it would appeal the final ruling to the U.S. Supreme Court.

The three judges specifically said they planned to order the system, swollen to about double its capacity last year, to cut down to 120 percent to 145 percent of capacity within two to three years. They did not give a target headcount.

More on this to follow.

Dickens in Alabama

I know this post has nothing to do with California Corrections, but I could not resist the temptation to write a few words about this NY Times piece, which tells a tale best relegated to Dickens novels.

DECATUR, Ala. — The prisoners in the Morgan County jail here were always hungry. The sheriff, meanwhile, was getting a little richer. Alabama law allowed it: the chief lawman could go light on prisoners’ meals and pocket the leftover change.

And that is just what the sheriff, Greg Bartlett, did, to the tune of $212,000 over the last three years, despite a state food allowance of only $1.75 per prisoner per day.

In the view of a federal judge, who heard testimony from the hungry inmates, the sheriff was in “blatant” violation of past agreements that his prisoners be properly cared for.

“There was undisputed evidence that most of the inmates had lost significant weight,” the judge, U. W. Clemon of Federal District Court in Birmingham, said Thursday in an interview. “I could not ignore them.”

So this week, Judge Clemon ordered Sheriff Bartlett himself jailed until he came up with a plan to adequately feed prisoners more, anyway, than a few spoonfuls of grits, part of an egg and a piece of toast at breakfast, and bits of undercooked, bloody chicken at supper.

The really shocking bit, though, is that this travesty is supported by Alabama law:

An unusual statute here dating from the early decades of the 20th century allows the state’s sheriffs to keep for themselves whatever money is left over after they feed their prisoners. The money allotted by the state is little enough — $1.75 a day per prisoner — but the incentive to skimp is obvious.

What can I say? Words fail me. Hard, Bleak times.

There is Nothing New Under the Sun

There are prisons, into which whoever looks will, at first sight of the people confined there, be convinced, that there is some great error in the management of them; the sallow meagre countenances declare, without words, that they are very miserable; many who went in healthy, are in a few months changed into emaciated dejected objects. Some are seen pining under diseases, “sick and in prison;” expiring on the floors, in loathsome cells, of pestilential fevers, and the confluent small-pox; victims, I must say not to the cruelty, but I will say to the inattention, of sheriffs, and gentlemen in the commission of the peace.

The cause of this distress is, that many prisons are scantily supplied, and some almost totally unprovided with the necessaries of life.

–John Howard (1777), The State of the Prisons in England and Wales, with an Account of Some Foreign Prisons

May the return of the light this season, and this year, bring some light to our correctional policy.

Happy Holidays, and a Happy New Year,


Fixing the Prison Medical System: More Hurdles?

The Chron reported yesterday that Governor Schwarzenegger won a reprieve from the 9th Circuit Court, after failing to come up with the money required for fixing the medical system.

As some may recall, last month Clark Kelso, the receiver appointed by Henderson to fix the prison’s broken health system, filed this motion against the Governor, arguing that the State’s financial crisis could not be used as an excuse not to turn in the 8 billion dollars required for the plan. Judge Thelton Henderson stopped short of finding the Governor in contempt for refusing to turn in the money.

As the Chron reports, after a break in the proceedings before the 9th Circuit, which granted the stay, Kelso expressed more willingness to work with the Governor to find a solution.

Incidentally, while the paper suggests that part of the problem is the secretive nature of Kelso’s plan, there are actually abundant materials about it readily online. Kelso’s full reports on the plan, his projects (such as the prison pharmacy project and the construction projects), are all on the California Prison Health Care Services website.

So, is Kelso running a “parallel government”, or should the government cooperate with the plan and produce the necessary funds? You be the judges of that.

The Greening of Prisons?

(image from Chronicle article)
The Chronicle reports today of an interesting trend in some prisons, albeit not in CA: greening, composting and recycling. In Indiana, North Carolina, and Oregon, prisons are installing solar panels, using energy-saving equipment, and composting food scraps.

While this is, in principle, a cost-saving measure, it has had some heartwarming “side effects.” The Chron reports:

The responsibility of caring for the prison’s three hives of Italian honey bees falls mostly to Daniel Travatte, 36, a soft-spoken former drug addict who is serving 10 years for attempted armed robbery.

Under the supervision of prison counselor Vicki Briggs, Travatte has learned to harvest honey – which inmates occasionally eat with breakfast biscuits – and use beeswax to make lotions. He’s become an expert on their habits.

“I’m trying to change myself,” said Travatte. “A lot of people go through prison with no intention of changing. I love working with the bees. It keeps me busy. I have a lot of responsibility to take care of.”

While there isn’t scientific evidence that such activities are helping inmates, Nalini Nadkarni, an environmental studies professor at Evergreen State College in Olympia, Wash., notes anecdotal evidence that it’s working.

“They were stimulating their minds and having conversations that were different than ‘How much more time we have left?’ ” said Nadkarni.

While Cedar Creek went green out of economic necessity – it had to conserve because it didn’t have the wastewater capacity to expand four years ago – it is now embracing other benefits, said Dan Pacholke, a state prison administrator who helped implement many of the practices.

What about CA, which has pioneered greening efforts in so many other arenas of public and private life?
(image from CDCR website)
Well, as per this press release from CDCR, a series of energy-saving projects, including solar plants, are beginning to be implemented in prisons. These seem to belong more in the cost-saving family of changes; no composting, not to mention no community gardens or beehives. One can only hope that someone at CDCR will see the broader perspective and involve the inmate community in greening efforts; something very good might come out of this, beyond saving money.