Kristof on Humanity

In case you missed Nicholas Kristof’s column in the 1/27/10 New York Times, it’s right here. Kristof relates statistics and instances of violence in prisons, especially sexual violence, especially in juvenile prisons, especially by prison guards. “I’ve never written about the horrors that unfold in American prisons — especially juvenile correctional facilities — on a far larger scale than at Guantánamo.”

Of course, it is a premise of this blog that our prisons are in a financial crisis. But as Kristof indirectly recognizes, sometimes the economic angle lets me temporarily forget the human angle. Rights that we can often take for granted in this country, including physical safety, are daily struggles frequently lost in our prisons. The real human costs of our failing correctional institutions are sickeningly deplorable, and prison reform will always be about more than money.

Exporting Inmates to Mexico?

The latest Governor’s proposal to save on corrrections by building correctional facilities in Mexico to house undocumented immigrant inmates has raised eyebrows around the state and yielded various responses, ranging from support to downright mockery. Since I’m not an expert in international law, I consulted some colleagues about the legal implications of putting the proposal into practice.
Can US build prisons in Mexico? The answer to this question depends, of course, on Mexico’s consent. The interdependence between the countries, particularly with respect to labor (read all about it in Eric Schlosser’s Reefer Madness), often makes us forget the Mexico is a sovereign nation. Mexico might, however, agree to such an arrangement, either for profit, or in order to ensure that its citizens are properly treated. Given what we know about corrections in Mexico, the latter would not be a concern. The former raises serious questions about the potential savings for the U.S. from such a solution.
In addition, much as some California secession advocates would like to believe it, California is not a sovereign nation, which presents additional difficulties.
Even if these difficulties were to be overcome, there would still be serious jurisdictional problems involving various legal issues about the new prisons. Which legal system would govern inmates’ rights in Mexico? International law, in itself, provides very little in the way of inmate rights, though some of its minimal provisions may be applicable in a system that employs torture. We are left with two more realistic possibilities: Mexican law or U.S law.
Can California subject its inmates to Mexican law? For inmates who are not Mexican citizens, it is highly questionable whether Mexican law can be imposed on them against their will. Granted, tourists in Mexico are subject to local law, but being involuntarily housed in a foreign country is not an equivalent solution. If the inmates are Mexican citizens, this is easier to resolve, particularly if the intent is to use the new prisons to house people who have been in the U.S. in violation of immigration law. However, not all undocumented immigrants are Mexican, and the current mix-ups at CDCR about people’s status do not bode well for a classification system that would clearly resolve sticky issues of jurisdiction.
What about applying U.S. law? This situation would be, of course, preferable from the inmates’ perspective, because that would allow them to raise constitutional claim and rely on 8th Amendment jurisprudence. The ability to apply U.S. law to prisons in Mexico is not without problems, but is not unheard of. After all, foreign embassies apply the laws of their home countries, and some institutions have been analogized to embassies for jurisdictional purposes. In a fascinating paper, titled Rights Beyond Borders, my colleague Chimène Keitner discusses the complicated and tricky issues involved in applying the U.S. Constitution to defend detainees against torture (say, in the Guantanamo context). There are important differences between the two situations, of course. Moreover, assuming that prison building will be done with private contractors, issues of conflict of laws arise with regard to possible tort litigation.
In the very least, it is safe to say that there are plenty of issues and problems that would need to be resolved before we resort to building prisons on foreign soil. On the ethical side, it would probably be preferable to remember our responsibility to contain and resolve a problem created within our borders.
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Many thanks to my colleagues Chimène Keitner and Naomi Roht-Arriaza for helping me think this through.

LAO assesses Governor’s Population Reduction Plan


The Legislative Analyst’s Office (LAO) has just released its report assessing the Governor’s population reduction plan. The full text of the report can be found here. Here’s the gist of the report.

As a reminder, this refers to the Governor’s initiative, which later became SBX3 18, under which the CA inmate population would be reduced by approximately 18,500 inmates in 2009-2010, and an additional 25,000 in 2010-2011. The legislative analyst reminds us, however, that “the actual reduction in the inmate population from the above policy changes is now estimated to be significantly less than initially planned—about 1,600 inmates in 2009‐10 and 11,800 inmates in 2010‐11. This is primarily due to delays and changes in the implementation of the new policies.” The report also mentions that the state’s plan for the Plata/Coleman panel included two additional measures which were not included in the governor’s plan: adjusting the dollar threshold for grand theft and placing some elderly and infirm inmates under GPS monitoring as an incarceration alternative.

The report recommends that the legislature consider four issues when assessing proposals: budget savings, actual reduction in population, public safety, and imposition on local jails and counties. Based on these criteria, LAO finds that the governor’s plan achieves some savings, but is overstated, partly because of the delays in state employee layoffs.

As to the population reduction, LAO estimates it at 24,000, which is considerably less than the Plata/Coleman requirements, but which “would put the state closer to meeting that poten‐ tial target. Moreover, it could reduce the need for the prison construction projects authorized in Chapter 7, Statutes of 2007 (AB 900, Solorio) to help alleviate the state’s prison overcrowding problem.”

LAO sees no compromise in public safety stemming from the proposals; short-term offenders would still be incarcerated, albeit in cheaper facilities, and prisons can accommodate the more dangerous offenders. It expresses, however, concern about depleting local resources by overcrowding jails. Also, in points out some possible unintended consequences: the proposal could be misconstrued to suggest that offenders with prior records must be convicted for a felony if committing one of the offenses in the proposal.

LAO recommends adopting the proposal, albeit with several modifications: Allowing counties to rely on alternatives to incarceration; revise the language; and consider adding reliance on GPS for elderly and infirm prisoners.

Drug Court Humonetarianism

Reuters has a fascinating article here on drug courts, empathy, and the monetization of humanitarianism. The author discusses shifting economic priorities in the war on drugs.

Contextually, it begins with Judge Gorsalitz’s drug court in Kalamazoo, MI. The writer’s title, “America’s new touchy-feely war on drugs,” and tone suggest amusement or even contempt for the drug-court approach, but then the litany of drug war harms and legalization benefits belies a different understanding.

The piece favors Judge Aim’s Project Hope in Hawaii, which saves money by making drug treatment voluntary not mandatory, and uses penalties of short jail stays instead of reinstating full sentences. Of course, here in the City&County of SF we have Judge Albers’s Community Justice Center — for its drug court context see Prof. Aviram’s post here.

BREAKING NEWS: SCOTUS Dismisses Appeal in Plata/Coleman

This morning, the Supreme Court refused to grant cert in the Plata/Coleman case. SCOTUSblog reports:

The Court ruled that it had no jurisdiction, at this point, to review a lower federal court’s order that would require the state of California to release upwards of 40,000 inmates from its state prisons to ease overcrowding that the lower court blamed for inadequate medical care in the 33 prisons. The Court noted, in a brief order, that a new order has been issued in the case, “but that order is not the subject” of the present challenge. It also took note of the fact that the latest lower court order has been blocked pending “review by this Court” — an indication that the Court expects the state to file a fresh new appeal to challenge the order now in effect, issued earlier this month. Lawyers for state officials have said they would promptly file a new appeal. (The cases are Schwarzenegger v. Plata, 09-416, and California Republican Legislators v. Plata, 09-553).

What this means, in a nutshell, is that the new order issued by the court in October, prompted by the state’s noncompliance with the original August 4 order, is now in effect. Since the Supreme Court has been asked, by the state, to review the previous order, it has no jurisdiction now that the previous order has been vacated.

Is this merely a technical issue, which will be sorted out once the state submits an appeal regarding the new order (have no doubt that they will), or does this mean that the Court is signaling its unwillingness to deal with the issue altogether? That’s anyone’s guess. I may be reading too much into this, but it seems to me that SCOTUS is not excited about the prospect of digging into the California issue. In any case, at least for now, population reduction is to go on as scheduled.

Plata/Coleman Missing from List of Certs

What happened today at the Supreme Court? It’s a bit shrouded in mystery. SCOTUS Blog reports on the five cases in which cert was granted. Plata/Coleman is missing from the list.

The folks at Crime and Consequences opine:
We’ll have to wait and see whether the Governator’s case is denied or relisted. There have been further developments in the lower court, and the appellant just filed a second supplemental brief yesterday, so possibly they took it off the calendar to give the opposing party a chance to respond.

We will follow up and keep you posted.

State of (the) Prisons: Thoughts on State of the State Speech

Here are some initial thoughts about the Governor’s speech, in no particular order:

It seems that, in general the Governor’s heart is in the right place. It is, indeed, disturbing that our budget allocates more money to education than to corrections. However, the solution he advocates–contracting with private companies for out-of-state housing rather than releasing prisoners–is disappointing and may backfire in the budgetary sense.
It is telling that the press release emphasizes, in bold letters, that the new measure prohibits releasing prisoners as a way of cutting costs. The rhetoric is, of course, familiar. The press release plays on public concerns by invoking the image of prison doors opening and tens of thousands of dangerous criminals walking out. However, as we recall from the original Governor’s proposal back in May, Schwarzenegger himself proposed several important measures, such as good work credits, alternatives to parole violation measures, and some legislative changes to allow prosecuting some current felonies as misdemeanors. Do these measures count as “inmate release”? No proposal ever intended to do what the Governor’s rhetoric suggests – opening the doors and letting massive amounts of inmates walk out – but all proposals, from the Plata/Coleman panel order to the CDCR plan to the plan advocated by the Governor himself, adopted such measures to reduce prison population. Does this new measure preclude only mindless mass releases, or also sensible reform? Will we still see these healthy steps occurring, in addition to privatization and prisoner export?
The other important question is whether exporting our inmates to other states, and paying for their incarceration there, is really cost-effective. In a blog post yesterday, Jonathan Simon characterizes this fiscal measure as “reducing spending on prisoners, not . . . reducing prisoners.” But does out-of-state incarceration really reduce expenditure per inmate in the long run? I have tried to find studies that compare recidivism rates between in-state and out-of-state inmates, and have not found anything. Perhaps this dearth of research stems from some methodological issues; as this study demonstrates, it is very difficult to measure the link between mode of incarceration and recidivism, because recidivism might be linked to factors that also led to differential incarceration modes. The out-of-state issue presents additional complications, as demonstrated by this Ohio study; it is difficult to measure recidivism across states, given the differences between different state criminal codes. Nevertheless, these methodological issues do not present insurmountable hurdles, and it would be an interesting exercise to conduct a study that examines whether out-of-state incarceration increases recidivism. In formulating an (empirically untested as of yet) hypothesis about this, it would stand to reason that when someone is incarcerated far away from family and friends, and has no support system, one stands on a less solid ground upon release and is therefore more likely to reoffend. If our readers have other opinions on the subject, we look forward to reading them in the comment section.
We know more, however, about recidivism rate comparisons between private- and public-prison-housed inmates. This Florida study, for example, found no significant differences between inmates housed in private and public facilities. As the authors say, any argument on behalf of privatization should be based solely on costs, not on rehabilitative potential. I would add that, given our concerns about sustainability in the long run, opting for a privatized system should also examine whether the volume of prisoners is likely to remain the same, which will necessitate continued reliance on out-of-state private institutions for our inmates for many years to come.
Another aspect of this issue is the broader national disparity between states who house their prisoners out-of-state and states who farm out their prisons and make business off of other states. In a previous post by Jesse, we briefly discussed this ACLU report, which praises Michigan for achieving a 8% prison population reduction by closing down eight prisons and relying heavily on reentry mechanisms. The irony is, of course, that while these commendable policies are helping Michigan get out of the political logjam and solve its own correctional crisis, Michigan is exploiting our inability to do the same by trying to rent out its prisons to us. I find this rather grim and thought provoking.
Finally, in reading the Governor’s proposal, I want to suggest that while the new measure might prohibit releasing prisons to release cost, it certainly does not prohibit doing so in order to comply with court orders. Assuming that the Supreme Court will not overturn the Plata/Coleman decision, there is still hope that at least some of the population reduction will be achieved by strategies that tackle not only population rates, but recidivism rates.
I look forward to hearing your thoughts on the Governor’s plan.

The Fruit of Humonetarianism: An Expected Decline in Incarceration


As reported recently on the Chron, tight state budgets are expected to lead to a reversal of the incarceration trend nationwide:

The United States may soon see its prison population drop for the first time in almost four decades, a milestone in a nation that locks up more people than any other. The inmate population has risen steadily since the early 1970s as states adopted get-tough policies that sent more people to prison and kept them there longer. But tight budgets now have states rethinking these policies and the costs that come with them.

“It’s a reversal of a trend that’s been going on for more than a generation,” said David Greenberg, a sociology professor at New York University. “In some ways, it’s overdue.”

The U.S. prison population dropped steadily during most of the 1960s, but it has risen every year since 1972, according to the Bureau of Justice Statistics.

About 739,000 prisoners were admitted to state and federal facilities last year, about 3,500 more than were released, according to new figures from the bureau. The 0.8 percent growth in the prison population is the smallest annual increase this decade and significantly less than the 6.5 percent average annual growth of the 1990s.

Happy Holidays to our readers, and a Happy New Year.

Resuscitating the Michigan Deal?

(image courtesy Michigan Radio)

Attentive followers of the overcrowding crisis may recall the failure of the deal to house California prisoners in Michigan institutions back in August. Since then, the correctional institutions in question – the maximum security Standish facility and the minimum security Hiwatha facility – have been standing empty, even after Michigan reached a deal to house Pennsylvania prisoners.

The Chron reported yesterday that Michigan is looking at several possibilities, among them a new proposal for CA. Another possibility is housing Guantanamo prisoners, and as Michigan Public Radio reports, Obama administration officials have toured the facility in order to determine whether it would be suitable for the job.