Cellmate Compatibility: Why Not?

According to media reports, California state prisoners are killed at a rate that doubles the national average [update: I’m not sure this is true, having looked at the numbers more recently]. A sensible proposition has been made–and rejected: The Merced Sun-Star reports:

The department will not reinstate a policy dropped 15 years ago that required potential sensitive needs cellmates to fill out a compatibility form before they are housed together, Ralph Diaz, acting deputy director for adult institutions, told a Senate budget subcommittee.

Sex offenders, former gang members and other vulnerable inmates are placed in special sensitive needs housing for their protection.

However, the inspector general and an analysis by The Associated Press published in February found that a disproportionate number of homicide victims were sensitive needs inmates.

The compatibility forms help officials assess whether inmates can live peacefully together. They are required for inmates housed together in other segregated living units, and Sen. Loni Hancock said they should be required for sensitive needs inmates as well.

“We do look for inmates who we feel should not be celling with others,” Diaz testified. However, he said using the forms for sensitive needs and general population inmates would be too cumbersome and the department’s current process can appropriately address housing concerns.

There are two ways of viewing this debate. One is through the usual old-skool impasse between carceral discourse and rights discourse. The other, however, is cost-oriented. CDCR is refusing to reinstate this policy because it believes that it would needlessly complicate its operations; Senator Hancock thinks that the costs in lives and healthcare offset these considerations.

This debate is an example of a situation in which a prison is not really sui generis. In any other setting, in which people are thrown together–especially in total institutions–it’s best if they spend time in close quarters with people with whom they can get along. This is not merely a matter of finding the roomie’s company enjoyable; it’s about preventing exploitation, abuse, and conflict.

New Jails: If You Build It, They Will Come?

Yesterday’s interesting L.A. Times editorial addresses the plan to build a new jail in Los Angeles, which prison activists have been resisting for a long time. When I visited Los Angeles at the ACLU of Southern California’s invitation, our conversation about the plan was fraught with misunderstandings. The Sheriff’s Office’s position was that a new jail was necessary because conditions in the existing jail were horrific, particularly with regard to treatment for mentally ill inmates.

Can’t argue with them on that point, of course; the County Jail is America’s largest psychiatric ward. Indeed, recently the authorities have finally started to question the wisdom of jailing the mentally ill and come up with alternatives, but there’s still a long way to go. There are some things that the jail gets right, such as when they properly use strategic segregation, as Sharon Dolovich explains here and here. But some of its effects are harmful and problematic, and the need for change is something we can all agree on.

But what sort of change? Yesterday’s editorial posits the plan as follows:

The Los Angeles County Board of Supervisors spent the last decade putting off those questions. Then, in May, it adopted a $2-billion plan to demolish the complex and build a new 4,800-bed downtown jail designed around the clinical needs of the large number of inmates with mental health and substance abuse problems, as well as the security requirements of inmates who pose a high risk of harm to others. Also part of the plan is a 1,600-bed campus-like women’s jail in Lancaster.

The supervisors chose the plan from among several presented by Vanir Construction Management Inc., a firm in the business of building such facilities. The price tag makes the construction project the most expensive in county history.

The updated design would certainly be an improvement over the current jail, yet it remains rooted in questionable estimates and bygone practices. It ignores the conclusions of a 2011 jail population study commissioned by the board, then for all practical purposes forgotten.

Rather than go with the spirit of Prop 47 and reduce incarceration, this plan may perpetuate the problem. The editorial goes on to say:

In pushing forward with a new jail that could keep as many people locked up as were, say, two years ago, the Board of Supervisors is in effect making an astounding policy statement: The current jail population is the correct one, despite the theoretical embrace of mental health diversion, the ability to authorize some no-bail, pretrial releases, and the recent reduction of sentences for some crimes. And the $2 billion — or perhaps twice that, when including bond interest — should all be spent on incarceration rather than more effective, and cost-effective, alternatives.

I tend to think of prison construction like road construction: traffic congestion increases with road development because it creates an incentive for more private vehicle transportation. This is why activists oppose the new plan. Let’s solve the overcrowding problem by, well, not overcrowding the jail with people who are far better off treated in the community for their underlying mental health problems.

Plata/Coleman Sequel: We Can’t Release Inmates – We Need Their Labor!

If you’ve followed the litigation in Plata/Coleman from the mid-2000s forward, you probably think you’ve seen it all: the dawdling, the evasion maneuvers, the political blackmail. But today I have something really special for you. As you might know, the court has ordered a special parole regime to ensure early releases. What did the Attorney General’s office have to say? The L.A. Times reports:

Most of those prisoners now work as groundskeepers, janitors and in prison kitchens, with wages that range from 8 cents to 37 cents per hour. Lawyers for Attorney General Kamala Harris had argued in court that if forced to release these inmates early, prisons would lose an important labor pool.

Yes, you’ve read it right. The Attorney General’s office now opposes early releases BECAUSE THOSE WILL DEPRIVE IT OF A CHEAP LABOR FORCE. The prisons can only function if prisoners work in them, so… we need to keep them in.

I’m sure I don’t need to explain why this is a shockingly conscienceless rationale to keep people incarcerated and pay them abysmal wages, and much as I resist the unsubtle comparisons made in The New Jim Crow, this really, really reeks of postbellum resistance. Ugh. Shame on you, Ms. Harris.

BREAKING NEWS: CDCR To Ease Gang Restrictions

Reported an hour ago by the Associated Press:

Prison officials revealed new rules Friday that they say will make California the first state to recognize that inmates can quit prison gangs and put that lifestyle behind them, allowing them to escape the tough restrictions that gang members are subject to.

However, gang associates would have to steer clear of gang activities for about a decade to qualify, while gang leaders would have to behave for a minimum of 14 years.

The draft regulations made public Friday are the latest changes to rules that keep some gang members locked in special isolation units for years and have led to widespread inmate hunger strikes. A spokesman for a coalition of reform groups that backed the hunger strikers called the changes “woefully inadequate.”

The new regulations are an extension of a 15-month-old pilot program that has allowed gang members to get out of isolation units at Pelican Bay in far Northern California and other prisons without renouncing their gang membership.

Since the start of the pilot, the department has reviewed 632 gang members who were in isolation units. Of those, 408 have been cleared to be released into the general prison population and 185 were given more privileges but remain in isolation.

Those 2012 policies, which are being updated in Friday’s filing with the Office of Administrative Law, let the gang members and associates gain more privileges and leave the isolation units in as little as three years if they stop engaging in gang activities, and participate in anger management and drug rehabilitation programs.

Officials said that change was based on programs in seven other states. California is now the first to go a step farther by removing the gang designation entirely if the inmate continues to behave, said Terry Thornton, a spokeswoman for the California Department of Corrections and Rehabilitation, or CDCR.

CDCR gives reasons for the new regulation:

Despite the successes the CDCR has had in removing violent and disruptive STG affiliates from the general population settings of the institutions, the Department has recognized a need to evaluate current strategies and implement new approaches to address evolving STG trends consistent with security, fiscal, and offender population management needs. Fortunately, the inmate population reductions associated with Public Safety Realignment is affording CDCR the opportunity to reconstruct aspects of its STG policy that are consistent with successful models used in other large correctional agencies. The Public Safety Realignment will result in easing overcrowding and providing CDCR with more housing options to support this effort.

And here are the actual regulations, which define the step-down processes that are to be taken. The multi-step process of being cleared of gang affiliation (referred to in the regulations as STG – security threat group) is lengthy and features various monitoring options.

Corporal Punishment for the Mentally Ill? Judge Karlton to Decide

Two shocking videos depicting prison guards at Corcoran subduing mentally-ill inmates with pepper spray and batons are the subject of federal litigation aimed at ending such brutal corporal punishment. The videos are not available for sharing online, but they have been viewed in court, and the Sacramento Bee describes their content:

In the first video, played to a hushed crowd of lawyers and reporters in Karlton’s 15th-floor courtroom in downtown Sacramento, an inmate in a mental health crisis unit at Corcoran State Prison is shown refusing to take medication from a psychologist visiting him in his cell.

“He refused to take it,” the psychologist tells a waiting team of guards wearing gas masks, helmets, padded vests, gloves, protective jumpsuits and shin guards.

The inmate, locked in his cell, was playing with his feces and threatening to throw two cups of an unknown substance on anyone who entered. Almost immediately after the psychologist emerged, the team began pumping pepper spray through the food port of the metal cell door, repeatedly dousing the inmate between warnings that he better come out.

The team opened the door, dragging the inmate out and wrestling him to the floor as he alternately sobbed and screamed, “Don’t do this to me,” “help,” and “I don’t want to be executed.”

The motion focuses on Eighth Amendment and Fourteenth Amendment violations, including force against inmates manifesting symptoms of mental illness, excessive use of pepper spray and of expandable batons, and requests that the Court order CDCR to revise their use-of-force policies to provide training, quality and assurance processes.

As Bakersfield Now reports, things have not been looking good for the state in court:

In its response brief, CDCR argues that it has a comprehensive use-of-force policy, revised in 2010, that takes into account mentally ill inmates and includes appropriate training and discipline provisions. The brief also argues that the high standard for intervention under the Prison Litigation Reform Act (PLRA) has not been met. The two videos, the defendants argue, do not demonstrate a “pattern or practice” of disproportionate force.

The state’s own expert witness testified that guards use pepper spray far too often and in quantities that are too great. He also said previous recommendations for changes were rejected or ignored.

The Contra Costa Times quoted Michael Stainer, Director of CDCR’s Division of Adult Institutions, who described the depicted incidents as “at best, controlled chaos.”

Judge Karlton is to issue his decision in a few days.

Music Review: Johnny Cash at Folsom and at San Quentin

It’s been a while since a CCC update, and this was partly because I was hard at work wrapping up my book manuscript, Cheap on Crime: How Recession-Era Politics Transform American Punishment, and sending it off to the good people at UC Press. For those wanting a wee preview, my paper with Ryan Newby Death Row Economics and my forthcoming paper The Inmate Export Business should give you a flavor of the book, though the framework will be much broader than in the papers. Until the manuscript reviews arrive, I’m working on some new and interesting projects, including one about marriage and companionship in California prisons in the post-DOMA era.

But in the meantime, I have been listening to some good music, including Johnny Cash’s two albums recorded as live performances in prison: The famous 1968 performance at Folsom, and the 1969 performance at San Quentin.

Johnny Cash needs no introduction. At the time he started considering a performance in prison, he had already had several brushes with the law himself, and his formerly glamorous career suffered serious setbacks because of his increasing dependence on drugs. Having kicked the habit at the end of 1967, Cash, whose interest in Folsom Prison was awakened long before (his Folsom Prison Blues was written back in 1953) reached out to San Quentin and Folsom through his new manager, Bob Johnston, and Folsom responded first.

Listening to the witty, subversive tracks makes one wonder how it was possible to organize a performance of this scale behind bars. The photos accompanying the CD depict Cash in front of an audience of thousands. Notably, the audience is largely white in those pre-drug-war days. Putting the show together must have been a logistic nightmare, and that CDC was willing to put up with it for subversive, anti-prison, pro-inmate, funny songs from a man whose own legal background was shady, seems incredible in 2013. The only example I can think of is Metallica’s performance at San Quentin. But Cash’s songs are risky and revolutionary. His 25 Minutes to Go is a wry, gallows-humor account of the minutes before the execution. “San Quentin, what good do you think you do? Do you think I’ll be different when you’re through?” He sings elsewhere, and even says, “San Quentin, may you born in hell; may your walls fall and I will live to tell.”

The inmates’ immense cheer is palpable.

The other tracks are also subversive and funny, and Cash’s rich voice rings jovial and powerful. The audience seems to be enjoying the performance a great deal; I bet they were expecting it for a long time. Highly, highly recommended.

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.

***

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.

Same Sex Marriage and CA Prisons

The big news in the correctional world is that the CA assembly has approved Gov. Brown’s recent proposal to use $315 million of my money and yours to build private prisons. This is not the end of the story, however, because–

[a]pproval by the full Assembly would set the stage for a showdown in the Senate, where Democrats oppose the measure. They want more money spent on rehabilitation services and drug and mental health treatment so offenders do not end up back in prison after their release.

Meanwhile, Day 58 of the hunger strike brought a statement of frustration from the mediation team, who was encouraged to hear about the potential public hearings, but concerned for the strikers’ deteriorating health.

And, Assemblymember Tom Ammiano has submitted a query to CDCR regarding same-sex marriage for inmates. Here is the CDCR memo, verbatim, from scribd:


In other words, inmates are now allowed to wed non-inmates in CDCR institutions. There are two notable things about this: First, that inmates who are both currently incarcerated cannot get married. This is, presumably, a continuation of the previous policy, but since prisons are segregated by gender it becomes much more meaningful now that folks of the same sex can get married. And second, that chaplains may refuse to perform the ceremony on conscience grounds, but in that case CDCR will substitute the refusing chaplain with another officiant.

The no-marrying-already-incarcerated-inmates rules, which is presumably in line with previous policy, raises some interesting questions. What happens if two women, who are already married, both get prison sentences (say, for unrelated felonies)? Does CDCR have policies about whether they should be kept in the same facility or in different facilities? And, while inmates can’t marry each other, surely they can have relationships with each other, and so, why the prohibition?

This Is the Way to Go: Senate Dems Propose Expenditures on Health, Rehab

As a response to Governor Brown’s idiotic $315 mil privatization plan from yesterday, Senate president Steinberg and 16 other Democrat senators “proposed a plan that would spend $200 million more for each of the first two years on rehab and mental health programs to reduce the prison population by the 9,600 inmates ordered by federal judges.”

The L.A. Times reports:

“The governor’s proposal is a plan with no promise and no hope,” Steinberg said. “As the population of California grows, it’s only a short matter of time until new prison cells overflow and the court demands mass releases again. For every 10 prisoners finishing their sentences, nearly seven of them will commit another crime after release and end up back behind bars.”

Steinberg has support among Senate Democrats for a broader approach. Sen. Mark Leno (D-San Francisco) said that the plan put forward by the governor is inadequate and that he will not support it. It requires $315 million this year and $400 million in future years, said Leno, chairman of the Senate Budget Committee.

“That is a huge sum of money to be spent on a nonsolution,” Leno said. “I could not support a solution to the court mandate that is based only on greater capacity. And that’s all I see in this proposal, greater capacity.”

Leno said any plan should include greater effort to reduce the recidivism rate, including a revision of the sentencing structure. “If we have learned anything over the past 30 years of criminal justice policy leading to this crisis, it’s that we cannot incarcerate our way out of it,” Leno said. “It doesn’t appear that the proposal deals with the core problems that we have, which are clearly in our sentencing structure and our lack of investment in preventing recidivism.”

A huge sum of money spent on a nonsolution, indeed. I gave an interview to the Daily Journal today (link tomorrow), in which I was asked whether this new proposal from senators is a game changer. I replied there was nothing new here; all criminal justice experts who cared to offer an opinion have repeatedly been saying that building more cells and privatizing more does nothing to ameliorate the prison crisis, and in fact guarantees that we’ll have a more serious crisis for years to come. All Steinberg proposal does is suggest spending the money where it matters – in helping people not come back to prison.

Jerry, What on Earth Are You Thinking?

Photo courtesy Rich Pedroncelli for
the San Francisco Chronicle.

The new gubernatorial plan to solve the prison crisis Jerry Brown says we don’t have has just been announced: Spending $315 million on private prisons.

No, I am not making this up. The Chron reports:

Gov. Jerry Brown on Tuesday responded to a federal court order to significantly reduce California’s prison population by proposing a $315 million plan to send thousands of inmates to private prisons and vacant county jail cells, hoping to avoid what he said would be a mass release of dangerous felons.

The cost could reach $700 million over two years, with much of the money likely to come from a $1.1 billion reserve fund in the state budget.

During a news conference at the Capitol, Brown bristled at the court’s suggestion that the state could continue its early release of certain inmates to meet the federal judges’ population cap. He noted that California has already reduced the prison population by some 46,000 inmates to comply with the court’s orders and said only the most dangerous convicts remain in state prison.

The judges have ordered the state to release an additional 9,600 inmates by the end of the year.

Brown, however, said sending them to available cells in privately run prisons within California and in other states, as well as to empty jail cells, is the best way to meet the court’s mandate without endangering public safety.

“Public safety is the priority, and we’ll take care of it,” the governor said. “The money is there.”

Governor Brown, what on Earth were you thinking when you concocted this wasteful, ridiculous, idiotic plan? What do you mean, “the money is there”? California is in a state of fiscal disaster, and suddenly we have $315 million to invest in private prisons? And where was all this mysterious money when federal courts asked you why we pack people up like sardines and let them languish in their own feces without appropriate health care? Moreover, how will this lucrative investment manifest itself? Will Correctional Corporation of America and Geo build prisons on Californian soil? Or will we send more inmates than the 9,000 we currently have out of state to Arizona and Tennessee? How are you squaring this off with your traditional allies at the CCPOA? Are you going to put state guards in private prisons to make sure their interests are served, as well? After all the effort we put into realignment–and after countless experts have made reasonable suggestions to keep jail population law by not locking up people who should not be locked up in the first place–this is what it’s coming to? After expert witnesses agreed that decrowding prisons is not a danger to public safety, where does your information to the contrary come from? Can you find a decent, respectable criminal justice scholar in the entire state of California that thinks this is necessary? Are you trying to divert our attention from the fact that this is Day 51 of a hunger strike against the horrific conditions under which you hold inmates in solitary confinement? What the hell is going on?