BREAKING NEWS: Federal Judge Approves Force-Feeding CA Strikers

A federal judge has approved CDCR’s request to force-feed inmates if necessary. The Associated Press reports:

Officials say they fear for the welfare of nearly 70 inmates who have refused all prison-issued meals since the strike began July 8 over the holding of gang leaders and other violent inmates in solitary confinement that can last for decades.

They are among nearly 130 inmates in six prisons who were refusing meals. When the strike began it included nearly 30,000 of the 133,000 inmates in California prisons.

Prison policy is to let inmates starve to death if they have signed legally binding do-not-resuscitate requests.

But state corrections officials and a federal receiver who controls inmate medical care received blanket authority from U.S. District Judge Thelton Henderson of San Francisco to feed inmates who may be in failing health.

The order includes those who recently signed requests that they not be revived.

This blanket permission raises a number of important ethical considerations. This New York Times debate highlights various fascinating aspects of the dilemma. You’ll note that reactions to this practice differ according to the commentators’ affiliations. Medical staff, abiding by their Hippocratic oath, may find it difficult to administer “a health-care solution to a political problem.” Some of the legal challenges are highlighted in this piece by Tracey Ohm. In arguing that force-feeding is unconstitutional, some argue that fasting is protected speech, and some argue that it is part of the right to privacy.

For those wondering what force-feeding is like, the above video depicts rap artist Mos Def, who undertook the force-feeding procedure administered in Guantanamo Bay, and had to stop because he could not bear going through with it.

Hunger Strike, Day 8: CDCR Defines Strike “a Disturbance”

The hunger strike in Pelican Bay, Corcoran, and other facilities continues. This series from TruthOut provides some insight into the strike and their links are fascinating reads.

Meanwhile, CDCR has released information on the strike, referred to as a “disturbance”:

As of [July 12 – H.A.], 12,421 inmates in 24 state prisons and four out-of-state contract facilities have missed nine consecutive meals since Monday, July 8, 2013. An inmate is considered to be on a hunger strike after he has missed nine consecutive meals.

CDCR is not identifying how many inmates are or are not participating in specific prisons. The mass hunger strike is organized by prison gangs and publicizing participation levels at specific prisons could put inmates who are not participating in extreme danger.

In addition, 1,336 inmates have refused to participate in their work assignments or attend educational classes.

Participation in a mass disturbance and refusing to participate in a work assignment are violations of state law, and any participating inmates will receive disciplinary action in accordance with the California Code of Regulations, Title 15, Section 3323(h)(A) and Section 3323(f)(7).

While, as Caitlin Henry pointed out yesterday, CDCR is wrongly citing their own code, they seem to be threatening these consequences:

3323. Disciplinary Credit Forfeiture Schedule.
(a) Upon a finding of guilt of a serious rule violation, a credit forfeiture against any determinate term of imprisonment or any minimum eligible parole date for an inmate sentenced to an indeterminate sentence, as defined in section 3000 Indeterminate Sentence Law (ISL), shall be assessed within the ranges specified in (b) through (h) below:
(h) Division “F” offenses; credit forfeiture of 0-30 days.
(9) Work related offenses:
(A) Refusal to work or perform assigned duties;
(B) Continued failure to perform assigned work or participate in a work/training program.
(f) Division “D” offenses; credit forfeiture of 61-90 days.
(7) Willfully resisting, delaying, or obstructing any peace officer in the performance of duty.
3315. Serious Rule Violations.
(a) Inmate misconduct reported on a CDC Form 115 shall be classified serious if:
(2) It involves any one or more of the following circumstances:
(3) Serious rule violations include but are not limited to:
(L) Participation in a strike or work stoppage.

In addition, a serious 115 rules violation report may have impact on an inmate’s parole, clemency, medical parole, or resentencing under Prop 36, as well as any other process that takes into account an inmate’s disciplinary history.

Props to Caitlin Henry for the CDCR links and explanations.

The Inmate Photo Ban and Reasoned Restrictions

Self-portrait drawn by Marcus Harrison at
the request of his mother Anita. Courtesy
the California Report.

There’s an interesting and thought-provoking story in this morning’s California Report about a prison regulation that prohibited photography.

For a quarter-century, California outlawed personal photographs for inmates held in isolation in special security housing units. Over the years, the restrictions affected thousands of inmates in four prisons: California State Prison, Corcoran; California Correctional Institution in Tehachapi; California State Prison, Sacramento; and Pelican Bay State Prison in Crescent City. While prison officials photographed the inmates for administrative purposes, those images were not passed on to families, making the men all but invisible to relatives living hundreds and even thousands of miles away. For years, prison staff defended the ban, contending that personal photographs were circulated by prison gang leaders as calling cards, both to advise other members that they’re still in charge and to pass on orders. 

But after taking a closer look at the ban during a 2011 inmate hunger strike, top Department of Corrections and Rehabilitation officials determined it was not justified. Scott Kernan, who retired as undersecretary of corrections in 2011, said the stories of calling cards were isolated examples and the photo ban and other restrictions targeted inmates who were not breaking any rules. 

“I think we were wrong, and I think (that) to this day,” he said. “How right is it to have an offender who is behaving … (and) to not be able to take a photo to send to his loved ones for 20 years?” 

Kernan directed prison staff to ease the restrictions for inmates who were free of any disciplinary violations. 

Now, with hundreds of families receiving photos from relatives locked at Pelican Bay, some for the first time in decades, there is growing pressure on the corrections department to lift other restrictions and limit the amount of time inmates are locked in the controversial security units. 

I find this story fascinating for several reasons. First, this is probably not the only instance of a prison restriction lasting decades before being examined and questioned. Scott Kernan is to be commended for his willingness to reexamine the restriction. Second, and related, note the incident that prompted reexamining the regulation: The 2011 hunger strike. While CDCR was very intent in arguing that the changes it made to its SHU policies were unrelated to the strike, it is clear that organized, nonviolent action that received media attention (arguably too little) has actually had an impact on institutional policies.

Lifting the photo ban was not one of the strikers’ five core demands. But it was a dated, unnecessary restriction that needed to be reexamined, and the hunger strike created the opportunity for prison authorities to reflect on its necessity.

The photo ban also illuminates the many aspects of segregation seldom addressed in the literature. The distance of Pelican Bay and Corcoran from many urban centers in California means that families seldom, or never, get to see their loved ones–to the point that children, siblings, parents and lovers may forget what their loved ones look like.

The success of the hunger strike that begins today remains to be seen. But this story highlights the possible gains from nonviolent action and is yet one more reminder why the strikers need our support.

Hunger Strike Resumes on July 8

The hunger strike over conditions in SHU units in California resumes on July 8. Those who have been following this blog during the previous hunger strike may remember that, in March 2012, CDCR released new regulations in SHU units. The conditions have drawn the attention of the U.S. Bureau of Prisons, Assemblyman Tom Ammiano, and a torture expert from the United Nations. And, various organizations in California have reignited the fight against solitary confinement under the banner Stop Torture CA.  My former student Azadeh Zohrabi and current students Courtney Oxsen and Ashley Toles are among those spearheading this campaign, and my colleague and former student Caitlin Henry does important and valuable work on prison visits and organizing.

For those only now joining the bandwagon, a new piece on the hunger strike coalition website explains why the new policies amount to torture. Among other things, the guilt-by-association piece remains alive and well, and new definitions expand what would be considered as a “gang” for solitary confinement purposes.

We will provide updates on the hunger strike as its beginning date approaches and wish success and good health to the strikers, many of whom are elderly and frail.

Federal vs. State Prison Conditions

Yesterday’s afternoon saw a story by Andrew Cohen of The Atlantic about recent scandals of inmate abuse and neglect in four states.

First, on May 22, the Civil Rights Division of the Justice Department released a report highlighting the unconstitutional conditions of a county prison in Florida. Then, on May 30th, the American Civil Liberties Union filed a federal lawsuit alleging atrocious conditions at a state prison in Mississippi. One day later, the feds again sounded out on behalf of inmates, this time against profound abuse and neglect at a Pennsylvania prison. Finally, last week, a federal judge issued an order describing the unconstitutional “brutality” of the prison in Orleans Parish, Louisiana.

There were many common themes in the reports. In each instance, the mistreatment of mentally ill inmates was highlighted. Prison officials have failed to provide a constitutional level of care in virtually every respect, from providing medication and treatment to protecting the men from committing suicide. In the Louisiana court order, one prison expert is quoted by the judge as describing an “extraordinary and horrific” situation with the prison there. In the Florida investigation, federal investigators noted that local prison officials “have elected to ignore obvious and serious systemic deficiencies” in the jail’s mental health services.

Cohen asks why federal authorities are not investigating similar abuses occurring in federal institutions. I think it may be easier for the feds to investigate and regulate state institutions than their own. And yet, lawsuits regarding abuse in federal institutions are constantly filed, such as here and here. This USA Today story, written from the perspective of white collar criminals, suggests that, while federal institutions are safer, some state institutions offer benefits such as visits. The differences in conditions may have much to do with the population in both institutions, which differs according to type of offense, as seen from the BJS pie charts above.

The bottom line is that it is very difficult to make generalizations on the differences between systems when there are so many institutions. The variation in conditions within each system may be greater than the difference between the systems. And, therefore, Cohen’s point that the abuses in some of them closely resemble those in state institutions is well taken.

Props to Heather Kelly and to Ben Fleury-Steiner for the link.

Gov. Brown Reveals Plan to Comply with Plata Mandate

A gym at the Deuel Vocational Institution in Tracy
emptied of triple bunks. Photo credit AP.

Yesterday, Gov. Brown revealed the State’s plan to comply with the Supreme Court’s mandate in Plata. The Greenwich Time reports:

Options in the state’s plan include:

— Granting more early release or “good time” credits to inmates, including second-strike inmates who have serious prior convictions.
— Paroling elderly and medically incapacitated inmates who are deemed unlikely to commit new crimes.
— Expanding the number of inmate firefighters by letting some serious and violent offenders participate.
— Increasing the use of drug treatment centers.
— Paying to house more inmates at county jails with extra space, and possibly at private prisons within California.
— Slowing the return of the 8,400 inmates who are being housed in private prisons in three other states at an annual cost of about $300 million.
— Adding space for 1,700 sick and mentally ill inmates when a new $840 million treatment facility opens in Stockton this summer.
— Freeing a projected 900 inmates because voters in November softened the state’s tough three-strikes lifetime sentencing law for career criminals. Proposition 36 changed the law to require that the third strike be a violent or serious felony and lets third-strikers with lesser offenses apply for shorter sentences. The administration rejected a proposal to release about 2,800 eligible inmates without court hearings.

The administration argued against many of the proposals even as it presented the options to the court in a series of legal filings.

There don’t seem to be many surprises here; in essence, the plan follows standard paths to decarceration. But it is also important to note that CA intends to slow down the rate at which it will bring back inmates held out of state in private institutions.

The other thing that is not surprising is the state’s tendency to speak in two voices at once every time these plans are discussed. The message is: We’ll comply, so as not to be held in contempt, but we don’t like this one bit, and are concerned about the implications for public safety. By now, Gov. Brown’s grumpy rhetoric – there’s no crisis, gyms are empty, everything’s fine, inmate’s lawyers and court-appointed masters are getting rich on taxpayer dollars, etc etc – should be familiar to regular readers. But the contempt threat, rarely made in the context of federal litigation, seems to have upped the ante.

It’s also notable that CA intends to expand its fire camp program as a plan for decarceration. Any readers interested in learning more about fire camps, and about the difference in conditions, demeanor, and interpersonal relationships between prisons and fire camps, I highly recommend Philip Goodman’s work, such as this terrific article.

Props to Caitlin Henry for the Greenwich link; I am surprised not to see this covered in CA periodicals.

Three-Judge-Panel: State Must Comply with Population Reduction Order; Jerry Threatened with Contempt

Image from CDCR’s three-judge-panel page.

A decision came out yesterday from the three-judge-panel that issued the original Plata v. Schwarzenegger decision: The state must comply with the original order. Moreover, should it not do so, it will be held in contempt. The L.A. Times reports:

In a blistering 71-page ruling, the jurists rejected Brown’s bid to end restrictions they imposed on crowding in the lockups. The state cannot maintain inmate numbers that violate orders intended to eliminate dangerous conditions behind bars, they said.

Brown and other officials “will not be allowed to continue to violate the requirements of the Constitution of the United States,” the judges wrote.

“At no point over the past several months have defendants indicated any willingness to comply, or made any attempt to comply, with the orders of this court,” they said. “In fact, they have blatantly defied them.”

The judges gave the state 21 days to submit a plan for meeting the population target by the end of the year. Administration officials said they would appeal the decision to the U.S. Supreme Court.

The piece pretty much speaks for itself, but I do want to say something about this to readers wondering why the state hasn’t been held in contempt so far, which is a question I get asked a lot when I talk about this. I think it’s important to understand that, while federal courts–rather than state administrators–have pretty much been the go-to place for inmate rights suits, courts are not natural policy designers. The judicial system is built on the premise of case-by-case arbitration, with an outcome that “takes sides” in a dispute between two parties (Martin Shapiro calls this “the logic of the triad“). Their ability to generalize and supervise is limited. The ways they perceive the world, discursively, are limited to assessing whether state agencies behaved in a way that violated constitutional standards – yes or no. Orders, supervision, revisiting issues–courts do all of those, but they do them because they have to. The hard work has to be done primarily by the state. Which is why, whenever possible, having a consent decree is a priority, and if that is impossible, it is at least useful to get some cooperation from the state and refrain from steps that will escalate the animosity between the state and the courts.

The escalation here–actually threatening the Governor with contempt–is understandable if one considers what Jerry has done in the last few weeks. He has attacked the special masters and receiver, and even griped about attorney’s fees for the inmates’ advocates. When seen in the context of this public relations crusade to besmirch the other side and the court-ordered mechanism, a threat of contempt is a logical response. And of course, the state retaliates by threatening an appeal to the Supreme Court. This is a collision course that will not end well, and it would behoove the Governor, and the state representatives, to consider growing up and collaborating with the courts. As things stand now, everyone has plenty to lose.

The Limits of Savings: Cutting Prisons but Not Populations

Inmate working on a flag at the Prison Industries Autority at CCWF.
Image from story on struggle to maintain
vocational programs in prison.
Credit Lea Suzuki for the San Francisco Chronicle.

Over the last five years, we’ve spent a considerable amount of time on this blog discussing the impact of the financial crisis on reversing the punitive trend, a phenomenon that I refer to, in my forthcoming book with UC Press, as humonetarianism. A recent story by Truthout’s Victoria Law is more skeptical about the potential of the crisis for changing real policies, and in fact highlights the perverse ways in which closing prisons and shifting populations negatively affect prison conditions.

Law provides some examples of how consolidating inmates in fewer institutions makes overcrowding worse:

In December 2011, on the heels of the US Supreme Court’s decision that the overcrowding in the California state prison system is unconstitutional, the CDCR proposed converting Valley State to a men’s prison and transferring its women and transsexual prisoners to the neighboring Central California Women’s Facility (CCWF). That month, CCWF was at 160 percent capacity with 3215 people.

“The CDCR has been talking about gender-responsive and gender-humane prisons. They said that women have different needs than men, but look at us now – women are overcrowded with eight to a room,” Wendy stated. A room, according to the Merced Sun-Star, is 348 square feet.

After the CDCR announced the conversion, despite threats of retaliation, 1000 people inside VSP and 200 inside CCWF sent letters against the plan to advocacy groups the California Coalition for Women Prisoners (CCWP) and Justice Now. “Women are not cattle. You can’t just shove us into a barn and [expect that] we will be all right,” wrote one woman. As of January 16, 2013, with Valley State having been emptied of all but five women, CCWF is at 187 percent capacity with 3748 women, making it the state’s most crowded prison.

During the transfers, medications were withheld. Once at CCWF, women reported difficulties receiving them. CCWP campaign coordinator Colby Lenz told Truthout that one woman was taken off her medications for two weeks before she was able to appear before a 12-doctor panel; they reassigned a new medication regimen.

Medical staff reportedly told an 81-year-old woman that she was old and going to die anyway, so they weren’t going to give her anything. Others complained about a particular nurse who was randomly withholding medications.

In addition, those in VSP’s mental health programs must be placed on a waiting list before accessing any mental health counseling. Wendy noted that, although CCWF only has six self-help groups, VSP’s 56 self-help groups, run by the women themselves, have been discontinued.

“No one was able to take their materials to start a [new] group. They [prison staff] are citing overcrowding and the cost to taxpayers of shipping these papers across the street,” said Lenz.
“People [transferred] are in a really horrible state. They are really traumatized,” she said. “The prison wasn’t giving people blankets, pillows, toilet paper, tampons or cleaning supplies.”

Claiming a shortage of staff to supervise the increased numbers, the prison placed many under lockdown. CCWP has been told that some women were transferred from general population at VSP directly into segregation units at CCWF. In addition, women reported that guards were provoking violence against the VSPW “bitches.” The mother of one transferee told Truthout that her daughter had said that conditions were so awful that she was contemplating suicide.
I don’t doubt any of this for a moment. Not only good things have happened in the correctional world since the financial crisis; bad and ugly ones abound. This is not just about increased overcrowding in consolidated institutions. Private prison companies have been making more profit offering local governments savings. Educational and vocational programs have been slashed (in fact, here’s an example of that in the very prison Law writes about). More inmates are housed in presumably more efficient out-of-state settings, taken away from relatives and friends. The trend of rolling incarceration expenses on the backs of the inmates themselves has increased as a “creative solution” for incarceration costs.

But I maintain that a lot of this comes from a misguided, short-term view of the expense argument. When seeking an emergency way to save money, correctional policymakers are likely to make these mistakes, ignoring the potential expensive implications they might have on the future in terms of recidivism rates. It is easier to adopt emergency measures than to think holistically about the challenges of mass incarceration and how they affect our spending later.

Short-term thinking about incarceration is not a new mentality. In a way, you could say this is what started the whole thing. What characterized our thinking about prisons in the 1970s was lack of actually thinking about them. The Nixon administration fueled money into law enforcement, and the expansion of prisons was an afterthought, a result of the increased number of arrests by a better funded and empowered police force. Even our way of funding prisons is a way of passing the buck to future generations, not through taxes we pay in real time but through hidden bonds that will be due later. Is it any wonder that, when trying to patch up the hole in our finances, we’re not considering the possibility that unprogrammed, overcrowded institutions, are a recipe for deteriorated health and decreased skills, which mean more costs and more recidivism?

The key to changing this is to transform the cost argument in a way that incorporates consideration of future recidivism rates into the assessment of everything we try to do. This is not easy to do, because measuring recidivism is tricky, and so is predicting recidivism. But I really hope we can do it, because there doesn’t seem to be any other motivation for change that holds the same amount of public appeal.

Props to Caitlin Henry for the link.

Ninth Circuit Revives Inmate Lawsuit for Pagan Chaplaincy

A three-judge panel of the Ninth Circuit has acknowledged, apriori, that Pagan inmates complaining about the lack of a paid chaplain might have two valid legal claims, and remanded the case to a lower court for consideration of such claims.

Some background: CDCR employs a five-faith policy, which acknowledges, for purposes of religious accommodation, Catholicism, Protestant Christianity, Judaism, Islam, and Native American spirituality. For years, volunteer Wiccan prison chaplain Patrick McCollum waged a legal struggle to obtain ackowledgment, and lost due to lack of standing: The right to a chaplain belongs to the inmates, not the chaplain.

A recent survey of religion in prison has revealed that Paganism, or Earth-based spirituality, is one of the fastest growing faiths in correctional institutions, and according to McCollum, the survey is tainted by underreporting on the part of inmates that were concerned about the repercussions.

In Hartmann and Hill v. CDCR, decided a few days ago, inmates argued that the lack of an official chaplain position also leads to other forms of religious discrimination and lack of accommodations. Their main contention is that the “five-faith policy” is not based on any neutral considerations, and that in Chowchilla, where the plaintiffs are incarcerated, there are more Pagan inmates than members of some of the approved five faiths.

In reversing the district court’s dismissal for failure to state a claim, the Ninth Circuit court was careful to state that the First Amendment does not require CDCR to provide all faiths with a chaplain. Nor did the Court find an equal protection violation. However, the court did find that the inmates’ claim that CDCR violated the Establishment Clause is valid; that is, that the existing arrangement potentially unreasonably burdens the practice of religion on the basis of preferential treatment. The plaintiffs also have a valid claim based on the California Constitution. In remanding the case to the lower court, the Ninth Circuit court instructed to view the Establishment Clause argument through the lens of facts – conditions of employment for chaplains, number of inmates in need of religious services, etc.

For excellent, informed commentary on the decision, including from Patrick McCollum himself, see Jason Pitzl-Waters’ blog The Wild Hunt. Or, for a dosage of ignorance and bigotry, see Debra Saunders’ poor excuse for a column on the Chron.