On Institutional Responsibility and Overcrowding

This week I traveled in Vancouver Island, BC. In Victoria, I was handed the local newspaper, the Times Colonist, which on Page 4 (!) reported of a prison protest in the Wilkinson Road Jail.

A 30-prisoner standoff broke out in the Wilkinson Road jail Thursday night after prisoners decided an inmate had been denied hospitalization and proper medication.


The inmate has liver cancer and hepatitis C, said Camille Davis, whose boyfriend, Samuel McGrath, is in the same unit as the sick prisoner.


Around 9 p.m., 30 inmates refused to be locked up because they said the issue wasn’t being addressed, said Dean Purdy, a corrections officer supervisor and chairman of the Corrections and Sheriffs Service for the B.C. Government and Service Employees’ Union. The B.C. Corrections Branch could not be reached for comment.


The result was a 25-minute standoff by the 30 inmates, who wanted the ailing prisoner to be sent to hospital, said Davis.


After the standoff, the sick prisoner was taken to hospital.

It would be rather simplistic to ascribe the differences between this coverage of this incident to the CA newspaper coverage of the Pelican Bay hunger strike, but nonetheless, I can’t resist noticing four peculiar things:

1) Page 4? This Victoria Jail is, apparently, not invisible to the public.

2) Coverage is decidedly sympathetic to the inmates and reports of their success. Note – this is a protest, not a “riot”, and the beginning of the story expands on the inmate’s medical condition and the urgent need to hospitalize him.

3) The first interviewee is the girlfriend of one of the inmates. I don’t recall seeing any CA newspaper being the least bit attentive to inmate families.

And, 4) – the big shocker – here’s what the correctional authority had to say about the protest:

“We’re severely overcrowded and it only stands to reason that when prisoners are incarcerated under these conditions, stress and agitation levels of inmates are going to be very high.”


Wilkinson and eight other provincial jails are operating at 180 per cent of capacity, said Purdy.


He said the overcrowding increases the risk of violent behaviour, escape and deteriorating working conditions for correctional officers.


Overcrowding promotes a “mob-like mentality,” he said. “It’s a recipe for disaster.”

Does anyone recall a current holder of a correctional position in the US offering such mild commentary about an inmate protest?

Support for Hunger Strikers in the New York Times

A New York Times editorial this week picked up the story about the Pelican Bay hunger strike, offering support for the strikers.

With their health deteriorating, those inmates continuing to fast resumed eating after state prison officials met a few modest demands. Inmates in Pelican Bay’s isolation unit will get wool caps for cold weather, wall calendars to mark the passing time and some educational programming. Prison officials said current isolation and gang management policies are under review. But the protest has raised awareness about the national shame of extended solitary confinement at Pelican Bay and at high-security, “supermax” prisons all around the country.


Once used occasionally as a short-term punishment for violating prison rules, solitary confinement’s prevalent use as a long-term prison management strategy is a fairly recent development, Colin Dayan, a professor at Vanderbilt University, said in a recent Op-Ed article in The Times. Nationally, more than 20,000 inmates are confined in “supermax” facilities in horrid conditions.


Prison officials claim the treatment is necessary for combating gang activity and other threats to prison order. It is possible to maintain physical separation of prisoners without ultraharsh levels of deprivation and isolation. Mississippi, which once set the low bar for terrible prison practices, saw a steep reduction of prison violence and ample monetary savings when it dramatically cut back on long-term solitary several years ago.

And there’s a humonetarian angle, too:

Holding prisoners in solitary also is very expensive, and several other states have begun to make reductions. In any case, decency requires limits. Resorting to a dehumanizing form of punishment well known to induce suffering and drive people into mental illness is beyond them.

The Benefits and Discontents of Incremental Reform

A few recent events have made me think about the advantages and drawbacks of reforming the correctional system incrementally, that is–by “fixing” one aspect of it at a time. Two things in particular came to mind.

The first is the tension between death penalty activism and life imprisonment, or long-term imprisonment, activism. Last year, at the World Coalition Against the Death Penalty meeting, I talked about the perils limiting activism only to the grounds that would “work”, such as innocence and cost. In the same meeting, Senator Mark Leno, for whose good intentions and immense contributions to correctional reform I have much respect, said that  abolishing the death penalty would not hamper public safety, as we could still throw dangerous convicted felons into prisons for the rest of their lives. This idea, of limiting the struggle to the death penalty under  the assumption that life imprisonment was somehow okay or even advisable, worked well in a room in which people were gathered as a narrow coalition – there were representatives of Murder Victims’ Families for Reconciliation in the room, as well as law enforcement agents who oppose the death penalty but are otherwise on board with law and order policies. So, politically, narrowing the struggle to “just” the death penalty is necessary to bring together all these groups of activists. However, narrowing the focus of the struggle to the death penalty under the argument that life imprisonment in a supermax facility, say, under SHU conditions, is not as bad, is a severe blow to the struggle against isolation, debriefing, and other humiliating conditions suffered by inmates who were not sentenced to death–precisely the conditions leading to the hunger strike, now entering its third week. Is this why the strike is getting so little press coverage? Because, in California, it is now politically easier to stomach a potential death penalty abolition than humane conditions for presumed gang members? Both of these goals are worth fighting for, and I wonder whether patience and incremental gains here will be to the inmates’ advantage or detriment.

The second is SB9, the Fair Sentencing of Youth Act, which for all its noble purpose and fancy name affects the sentencing of very few juveniles in CA, and less than 3,000 nationwide should it become national policy. Happily, SB9 recently passed 5 to 2 in the Assembly Public Safety Committee meeting; that is a very good thing, and it may make a meaningful difference in the lives of the few young men and women behind bars with no glimmer of hope for freedom in their future. However, as some blog commentators mentioned here in the last few days, the proposal is limited in effect to those juveniles, rather than giving more hope to juveniles sentenced to life with parole (say, 25 to life) or to otherwise lengthy sentences. Both groups of inmates – and the second group is, of course, more numerous – are worth fighting for, and again, I hope the incremental system will work to the benefit of the second group over time.

Changes and reform in criminal justice policies have historically been incremental. SB9 would not have existed without Roper v. Simmons, after which many activists may have asked themselves why it made sense to separate the fight . Similarly, the current proposal to end the death penalty in CA would not have come to life without years of moratoria and incremental struggles about amounts of this or that drug. And none of this would have been achieved, in my opinion, without the mundane, gray backdrop of the financial crisis, serving as a constant reminder to activists and disinterested citizens alike that we cannot afford mass incarceration and punitive extravaganzas. The current hunger strike in Pelican Bay, which I hope will finally start attracting more media now (mainstream news coverage of this event of seminal importance has been pitiful, with the exception of the L.A. Times), might not have come into existence had the Supreme Court decision in Brown v. Plata not given inmates hope for change.

So, the revolution will not come in a shiny parade. It will happen stone by stone, proposal by proposal, shutting down the mechanism not because all policymakers will suddenly come to the realization that what we have done is excessive, brutal and inhumane, but because we will gradually be unable to afford more and more pieces of the puzzle. It will be less dramatic, but the end result will be no less gratifying, and it is still worth fighting for, step by step, brick by brick.

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

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

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

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

News from Pelican Bay

Image courtesy: SPCR (full story here)

Yesterday’s protest at UN plaza was an inspiring and uplifting event, even as it reminded us of the horrifying, hellish conditions inmates are subject to at SHU units.

Anti-death-penalty activist, author and journalist Barbara Becnel gave us some news about friends inside, as did a number of family members and friends. It’s not easy to go without food or drink in prison, let alone under an isolation regime, in which food is one of the few things you have to look forward to. Health is deteriorating, but the men are determined to go all the way with the strike, said Becnel, because “we are already dead.”

Some of the publications I read, as well as evidence from visitors and family members, suggests that the CDCR publicized its 4th of July menu, which included items the inmates had not seen in a long time, in an effort to break the strikers’ spirits. And some former SHU inmates spoke up about their horrifying experiences in small, metallic, windowless cells, where they were locked for 23 hours a day save for a “dog run” for an hour.

The full formal complaint, including the inmates’ demands, can be read in this issue of Prison Focus (or, in a nutshell, here). The inmates ask for an end to collective punishment and “behavior modification”; for solid evidence, rather than conjecture, in labeling an inmate as a gang member; for an end to the abysmal, pshchologically harmful isolation regime; for adequate food; and for adequate programming. These are not demands for privileges, but rather for basic human rights.

Reports on the scope of the strike are misleading. Moreover, several newspapers have not even picked up the story. Please, inform the uninformed. Even in the era of Brown v. Plata, something must be done. Favorable decisions from the Supreme Court mean nothing if the outcome of relief isn’t felt in the darkest corners of the California correctional machine.

Inmates’ Hunger Strike Expands

http://www.latimes.com/news/local/la-me-0706-hunger-strike-20110706,0,3504424.story

Inmate hunger strike expands to more California prisons

Inmates in at least a third of California’s prisons are believed to be refusing meals in solidarity with maximum-security prisoners at Pelican Bay.

By Sam Quinones, Los Angeles Times
July 6, 2011


Inmates in at least 11 of California’s 33 prisons are refusing meals in solidarity with a hunger strike staged by prisoners in one of the system’s special maximum-security units, officials said Tuesday.

The strike began Friday when inmates in the Security Housing Unit at Pelican Bay State Prison stopped eating meals in protest of conditions that they contend are cruel and inhumane.

“There are inmates in at least a third of our prisons who are refusing state-issued meals,” said Terry Thornton, a spokeswoman for the California Department of Corrections and Rehabilitation.

The number of declared strikers at Pelican Bay — reported Saturday as fewer than two dozen — has grown but is changing daily, she said. The same is true at other prisons.

Some inmates are refusing all meals, while others are rejecting only some, Thornton said. Some were eating in visitation rooms and refusing state-issued meals in their cells, she said.

Assessing the number of actual strikers “is very challenging,” Thornton said.

Prison medical staff are “making checks of every single inmate who is refusing meals,” she said.

More than 400 prisoners at Pelican Bay are believed to be refusing meals, including inmates on the prison’s general-population yard, said Molly Poizig, spokeswoman for the Bay Area-based group Prisoner Hunger Strike Solidarity.

The group had received reports on the strike from lawyers and family members visiting inmates over the weekend, she said.

The group’s website claims that prison officials attempted to head off the strike by promoting a Fourth of July menu that included strawberry shortcake and ice cream. According to the website, the wife of a Security Housing Unit inmate said her husband had never had ice cream there and “has never seen a strawberry.”

Inmates at Calipatria State Prison — with more than a thousand prisoners — were among those reported to be refusing meals, Poizig said. Prison officials could not be reached for comment.

But Thornton acknowledged that inmates at the prison were refusing to eat state-issued meals.

The strike was organized by Security Housing Unit inmates at Pelican Bay protesting the maximum-security unit’s extreme isolation. The inmates are also asking for better food, warmer clothing and to be allowed one phone call a month.

The Security Housing Unit compound, which currently houses 1,100 inmates, is designed to isolate prison-gang members or those who’ve committed crimes while in prison.

The cells have no windows and are soundproofed to inhibit communication among inmates. The inmates spend 22 1/2 hours a day in their cells, being released only an hour a day to walk around a small area with high concrete walls.

Prisoner advocates have long complained that Security Housing Unit incarceration amounts to torture, often leading to mental illness, because many inmates spend years in the lockup.

Gang investigators believe the special unit reduces the ability of the most predatory inmates, particularly prison-gang leaders, to control those in other prisons as well as gang members on the street.

Prison administrators are meeting with inmate advisory councils to discuss the inmates’ complaints, Thornton said.

But “I have not heard there’s been any decision” to modify policies governing the Security Housing Unit, she said. “A lot of those policies have been refined through litigation.”
http://www.latimes.com/news/local/la-me-0706-hunger-strike-20110706,0,3504424.story

Copyright © 2011, Los Angeles Times

Haney on Psychological Consequences of Imprisonment in California

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

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

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

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

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

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

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

Women’s Institutions: Health Issues and Overcrowding

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

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

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

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

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

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

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

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

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

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

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

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

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

BREAKING NEWS: Supreme Court Affirms Plata Decision, Orders Decrowding

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

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

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

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

More later.