Book Review: Sunbelt Justice by Mona Lynch

Mona Lynch’s new book Sunbelt Justice will hit very close to home for Californian readers. The book tells the story of the Arizonian correctional system, starting with the early twentieth century and ending with Janet Napolitano’s time as governor. It is a fascinating account, which those of us interested in California corrections will read like a good political thriller.

Two principles underlie the Arizonian correctional philosophy: an ethos of self-sufficiency, which led to a lack of sympathy toward offenders, and a dislike for large governments, accompanied by sentiments of frugality. The early days of Arizona corrections were shaped by these ideas. Unencumbered by a yet-nonexistent central command and headed by strong personalities, prisons and juvenile institutions were run on the cheap, relying on a combination of inmate work and tough discipline for their daily operations.

Things briefly changed during the late 1960s with the formation of the Department of Corrections, which was headed, in its initial years, by outsiders. Its first Director, Allen Cook, was a veteran of the California correctional apparatus, and brought with him the large bureaucracies and rehabilitative ideals that characterized California corrections at the time. Initially welcomed, Cook ended up overstaying his welcome. The series of outsiders that succeeded him – most notably McDougall, who brought with him a system of good credits and community corrections reminiscent of Machonochie and, more recently, Murton – were unsupported, and eventually ousted, by the state politics.

The reign of Director Sam Lewis and his successors can best be seen as a reinstatement of a “new-old regime”. Lynch does an excellent job presenting this era’s complexities. On one hand, it is very much in line with (or ahead of) developments that were occurring elsewhere in the nation: the disillusionment with the rehabilitative idea and the emergence of law-and-order politics. On the other hand, in the Arizonian context, it is a variation on the original old theme of harsh discipline and no rehabilitation, a nostalgic return to the roots, albeit with the complication of exponential growth in prison population and a much larger bureaucratical apparatus.

Particular emphasis is given to this transformative period between the late 1970s and mid-1990s; Lynch provides a multilayered account of state politics, federal prison litigation, and their detrimental impact on prison conditions.

It is illuminating to compare Lynch’s insightful and informative account with the parallel Californian history. Arizona was not nearly as committed as California to the rehabilitative ideal, and its early correctional style was much more “Texan” than Californian. The model of inmate farm labor, accompanied by harsh discipline, reminded me very much of the incredible footage in Susanne Mason’s Writ Writer. In that respect, the backlash of the 1980s felt much more like a “homecoming” to toughness and frugality. However, many features are familiar. The political shift to the New Right and the increasing centrality of crime control to political campaigns are very familiar. So are the various legislative acts and voter initiatives of the mid-1990s, which in Arizona, as in California, failed to take into account the disastrous financial effect of county-level increasing sentences on state-level corrections. Even victim initiatives, which are downplayed in Lynch’s account, are in the background, as in California.

The questions I’m left with have to do with the level at which history is made. Arizonian correctional history was shaped by strong personalities, who played, to varying levels of success, on a changing political arena. Is it possible to swing back the punitive pendulum, citing costs? That is what Director McDougall attempted to do in the early 1980s, with only limited and temporary success. This Arizonian lesson does not bode well for an era in California in which the only effective argument against punitiveness is related to taxpayers’ wallets. The other ominous lesson is that of the Supreme Court’s limited support for federal intervention in Arizona prisons, providing only weak support to Judge Muecke’s constant supervision and review of the state’s prison population and conditions. The Roberts court may exhibit a similar level of inhospitability toward the federal intervention in California. Under such conditions, forceful and innovative personalities can prevail only for a limited time, and the fate of the system is ultimately shaped by broader socio-political developments. Perhaps we are now in a better place, and state citizenry recognizes the unsustainability of our correctional monster. In the meantime, Lynch’s excellent book offers an opportunity for grim reflection.

Death Row Expansion Halted!

California Treasurer Bill Lockyer is halting the issuance of bonds to pay for the Death Row expansion endorsed earlier this year by Governor Schwarzenegger. The delay is due to the efforts of Assemblyman Jared Huffman and Senator Mark Leno. The Marin Independent Journal reports:


Huffman and Leno. . . sent a letter to Lockyer on Wednesday asserting that sale of the bonds would be illegal until resolution of litigation challenging Gov. Arnold Schwarzenegger’s veto of budget language on conditions for financing of the project.

The language prohibited issuance of bonds until the California Department of Corrections and Rehabilitation determined that it could lawfully double-cell condemned inmates; federal court litigation on prison overcrowding currently before a three-judge panel was resolved; and the correction department completed California Environmental Quality Act analyses for any modifications to the project.

Huffman said the governor had no authority to use the line-item veto on policy language.

This delay may be good news for death penalty activists, but its long term impact on the death penalty will depend, to a large extent, on the next administration and on the 2010 elections.

Unintended Consequences of Population Reduction Orders


I’ve just returned from the Fourth Conference on Empirical Legal Studies, held at University of Southern California. The whole thing was absolutely fascinating, and the papers were top notch. I will probably refer to some of these in the days to come, but the one most pertinent to our blog is Richard Boylan and Naci Mocan’s interesting paper Intended and Unintended Consequences of Prison Reform. Analyzing data from many states (predominantly in the south) that were ordered by federal courts to reduce prison population, Boylan and Mocan find that complying with these orders required an increase in correctional expenditures. The graph in this post depicts the “jump” in expenditures after court orders, compared to states that were not subject to such orders.

Now, where did that money come from? Unfortunately, from welfare. The increase in expenditures on prison improved condition within walls, but outside, it led to cuts in welfare programs. Worse, after the period of court supervision is over, the money is not returned to welfare. The irony, of course, is that prison reform and welfare target mostly people of the same social class, and once conditions improve and the population is released, folks come out to a world that offers them little in the way of help and assistance.
Granted, there are a few things that are difficult to control for even in a project as tightly designed as this one. One of these is the content of the court order. We know that population reduction methods vary according to their costs. Good credits will probably not cost as much as, say, out-of-state incarceration. These things make a lot of difference. Perhaps the policymaking lesson to be learned is that courts can and should leave states less free reign when ordering population reduction, and in the planning stage, consider the possible effects of these methods on the remaining state budget.

State Plan a Mix of Releases and Correctional Expansion

I’ve just finished going over the CDCR population reduction plan in all its more-than-100 page glory (including the depositions). For those who rejoiced in the original August order to reduce population, the plan will be a disappointment; but even those who found the panel’s reasoning problematic will find little cause for rejoice.

Here are the essentials: The state stands behind the measures it proposed previously, in the noncompliant plan submitted September 18. Those included credit enhancements for good behavior, a certain quota of inmates housed in out-of-state facilities, more reliance on community corrections, sentence commutation, and parole reform (including the recently approved summary parole for nonviolent offenders).

In addition, the state proposes to seek changes to legislation that impedes broader use of the out-of-state option, privatization, shifting jurisdiction to county jails, and accelerated construction of prisons. It does so while expressing doubts about the federal panel’s authority to require violation of state laws; according to the state, therefore, these measures are necessary to bring the plan to the 137.5% reduction level.

The depositions provide concrete numbers regarding the reduction rates.

Jay Atkinson (Chief of Offender Information Services Branch) estimates that the California Community Corrections Performance Incentives Act of 2009 generates a system of rewards for probation success. Implementing it will achieve an approximate reduction of 1,915 inmates. In addition, releases based on good behavior credits will yield 2,921 reduction; raising the threshold of grand theft from $400 to $950 will yield a 2,152 reduction; and programs for alternative custody for low-risk offenders will achieve a 4,800 reduction. My summary: 11,788 total reductions. Atkinson cannot provide estimates for the reductions resulting from parole reform, but those may yield additional reductions.

Scott Kernan (Undersecretary of Operations) states that, by approximately January 2011, CDCR anticipates housing a total of 10,468 inmates at out-of-state facilities. In addition, it will push to remove an existing clause that mandates termination of the out-of-state program. Changing this clause will allow the state to expand its out-of-state program by 1,500 beds by December 31, 2011. In addition, the state plans to pursue privatization options more aggressively (the out-of-state options themselves are privatized.) Contracting with private facilities will provide an additional 5,000 beds for inmates removed from state institutions. Finally, CDCR will engage in a complicated game of musical chairs, which will involve shifting inmates around, switching between male and female inmates in some institutions, closing down 3 male facilities, and creating more community correctional facilities. This option will yield no more than a 800 inmate reduction. Total seems to be 17,768. Combining the two statements, the grand total seems to be a 29,556 reduction.

I haven’t checked up the math on the additional 10,000 reduction, but the plan suggests that this will be achieved through a combination of programs: commutation sentences, changes in juvenile facilities, and other measures that were mentioned in the original plan.

***

As can be seen by these two contrasting depositions, the state is pursuing two “prongs” of overcrowding solutions: the type that the court wished to encourage – namely, early releases, parole reform, and sentencing reform – and the type that the court will be very disappointed in, such as increasing prison construction and shipping more inmates out of state. Interestingly, these measures are predicted to yield more reductions than shuffling people within the existing incarceration options. The plan has, therefore, a bit of a “split personality”. Some of it expands the penal monster and some of it works to decrease it (in the spirit of humonetarianism.) I assume the court will be rather dismayed by this. Leaving the reduction methods up to the state opened the door for the state to cling to the old solutions of expansion, contraction, and exporting Californians to other states; but since the panel was convened for the sole purpose of solving the problem of constitutional violations in health care, its ability to have a general say regarding the system’s size is rather limited.

***

There is another issue which, while not directly yielding reductions, merits attention. At the panel’s request, the remaining depositions describe the impact of cuts to rehabilitative programs on prison conditions.

Sharon Aungst (Chief Deputy Secretary of the Division of Correctional Health Care) states that the decrowding will not improve treatment for the mentally ill, but the cuts in rehabilitative programs will have an adverse effect on weekly activities for mentally ill patients.

Robert Ambroselli (Acting Director, Division of Adult Parole Operations) estimates that the parole sites and programs have served a combined 18, 449 people, though some of these may be repetitive (enrolled in more than one programs). The expected $41,000,000 reduction in operational budget will lead to delays in finalizing and activating new sites.

Finally, Elizabeth Siggins (Acting Chief Deputy Secretary for Adult Programs) states that the budget cuts will lead to a significant reduction in treatment slots. 4,633 inmates (a 5000 reduction) will be benefitting from community-based aftercare treatment. Substance abuse programs will be available to 1588 inmates (4000 reduction). There will not be changes to in-custody drug treatment, the parolee service network (serving 863 inmates) and the female offender treatment and employment program (serving 412 inmates). 80,000 parolees will be getting employment opportunities through California New Start.

***

These are grim news indeed. It would appear that, over the next few years, possible gains with regard to health care will be offset by losses in terms of rehabilitative programs. The panel’s program to reform California prisons through the opportunity to intervene in health care seems to have been frustrated by the methods adopted by the state.

A final thing to remember is that the state’s plan is not to be construed as abandonment of its appeal to the Supreme Court. The state consistently repeats, throughout its legal documentation, the right to appeal the order, which it still maintains is erroneous. Given the particulars of the current plan, it remains to be seen whether the Supreme Court will see the panel’s attempt to fix the health care system in a favorable light. It is a sober reminder, though, that judicial review of state institutions is an imperfect and limited solution, and while it has the ability to change policies and practices in ways that are impossible through legislative and administrative channels, its narrow, case-by-case focus may have unpredictable, and disappointing, outcomes.

TODAY: Decrowding Plan Deadline

Today is the deadline for the state to submit its decrowding plan to the Plata/Coleman panel. No indication so far as to whether it will comply and what the plan will look like. As a reminder, per the October 21 order, should the state fail to submit a plan, the court will turn to the petitioners for an alternative plan. Contempt proceedings, which were stayed, are a very remote possibility (plus, one might mockingly say, prisons are already full). Stay tuned and we will provide updates by tonight or tomorrow.

Sentencing Commission to re-evaluate mandatory minimums

Today’s Wall Street Journal points out that October’s National Defense Authorization Act tasks the U.S. Sentencing Commission with reviewing federal mandatory minimum sentencing. Mandatory minimums, which remove judicial discretion in sentencing, are almost always for drug crimes, and have greatly contributed to the explosion in the federal prison population. This is the first issue I’ve seen the Fraternal Order of Police take a position aligned with Families Against Mandatory Minimums.

When I moved to California from Rhode Island, it had the highest unemployment rate of any state besides Michigan, making sentencing reform a high economic priority. Sure enough, this year the RI General Assembly voted to eliminate mandatory minimum sentencing for drug possession. The state legislature also decided not to return probationers to prison for violations other than the crime of which they were originally convicted. These changes, at the federal and California state level, would take a big chunk out of our corrections crisis.

The Game Is Afoot: CDCR Submits Bed Plan

… and back to California.

The 21 days are up, and today, the CDCR filed its plan for medical and mental health beds, which, it is argued, complies with the Plata/Coleman requirement.

I have not yet seen the full detailed plan, but there is a list of projects whose aggregates will provide a number of beds. Funding for the project comes from AB 900, which enables prison construction and improvement, and facilitates fund transfer for such projects.

This is an interesting CDCR move in the Plata/Coleman chess match. As you may recall, the original Plata/Coleman order was very skeptical of prison construction as a possible solution to overcrowding, but the wording in the order left a narrow opening for such a solution. In fact, it went as far as to say:

Although it might be theoretically possible for California to build its way out of its prison overcrowding problem, it is not practical to anticipate that the state will do so in a timely manner, if ever, given “the time that it takes and . . . the huge costs that it takes to do things like this.” . . . Nonetheless, because our order requires defendants to reduce the prison population to
a specified percentage of the prison system’s design capacity, any additional capacity provided by completed construction could help the state meets its obligations and might allow it to increase the number of prisoners who could constitutionally be housed in the prison system. In such case an adjustment as to the specific terms of the population reduction order, although not to the percentage cap itself, might conceivably be appropriate. We see little prospect for such an occurrence, however, in the reasonably near future, andthus no prospect of remedying the constitutional violations in a timely manner, other than in accordance with the order we issue below.

Now, it seems that CDCR is walking through that narrow opening, and to some extent frustrating the possibly broader agenda of the Plata/Coleman panel, which, as the state argued upon the issuance of the initial order, was to use the medical crisis to make some progress on the broader overcrowding problem. It is a strong, and problematic, statement to make: since you are forcing us to comply with the order, we’ll comply with it in the way least convenient to you, the budget, and the prison crisis. Look at what you’ve made us do.

Stay tuned. There will be more.

**** updated to add: I counted days again. It seems that the 21 days aren’t up yet; they end on Nov. 11. The state might still come up with a population reduction plan irrespective of the prison construction plans in this proposal. ****

More Out-of-State Inmates

More prison privatization is occurring, with the added complication of out-of-state imprisonment. The press release reads:

Corrections Corporation of America (NYSE: CXW) (“CCA”), the nation’s largest provider of corrections management services to government agencies, announced today that it has amended its agreement with the California Department of Corrections and Rehabilitation (“CDCR”) to allow for the housing of 2,336 additional offenders from the state of California. Under the amended agreement California will have the ability to house additional inmates at CCA’s North Fork Correctional Facility in Oklahoma and its Red Rock Correctional Center in Arizona. The 2,336 additional beds provide the CDCR the ability to house up to 10,468 offenders in five CCA owned facilities located in the states of Arizona, Mississippi and Oklahoma. CCA currently houses approximately 7,900 offenders from the state of California.
CCA is America’s largest private jailer, housing 75,000 inmates in its institutions.
______________
Props to Jerry Jarvis for alerting me to this.

Why is California Eliminating Rehabilitation?

Yesterday Prof. Aviram posted analysis of the newest Plata/Coleman panel court order. She points out, “The panel wants to hear more about the use of rehabilitation and reentry in the community as a population reduction measure that might actually improve public safety.”

So I thought I’d post this cover story from 10/17 last Friday’s LA Times. The piece highlights poignant personal stories of incarcerated, and formerly incarcerated, female addicts. It also provides a damning quote from a recent Schwarzenegger insider: “Kathy Jett, formerly Schwarzenegger’s top aide for prisoner rehabilitation, said gangs may attempt to fill the void created by the absence of programs.”

For purposes of this blog, though, the article also provides some worrisome statistics.

  • Rehab services lose $250 million a year, more than 40% of what they now get and a quarter of the $1 billion total sliced from the prison system.
  • “At the same time, the state is eliminating 45% of the seats in its substance-abuse programs for parolees.”
  • The featured rehab provider previously helped 756 women, and will now reach only 175.

These changes seemed almost calculated to increase addiction and recidivism. One might speculate that even the Governor is knowingly passing on the problem of prison overcrowding to the next administration rather than addressing any of its root causes.

Plata/Coleman Panel: We Were Not Fooled

Here is the order’s text, placed on a free hosting service for your convenience. The bottom-line message from the panel: We were not fooled by all the chatter and alternative proposals going on. We read the newspapers. Deliver a plan that complies with our requirements within 21 days.

The panel starts by expressing extreme displeasure with the state’s non-compliance:

Rather than reducing the population of the CDCR’s adult institutions to 137.5% of their combined design capacity within two years, it provides for a reduction of the population of those institutions to 166% of their combined design capacity in that period. Additionally, defendants’ plan fails to set forth effective dates for the various actions proposed and fails to provide estimates of the reduction in population they expect to achieve after six, twelve, eighteen, and twenty-four months; instead, it provides estimates of the fiscal year in which actions may take effect and estimated population reductions for each fiscal year through 2014/15. In light of these inadequacies, defendants’ September 18, 2009 Population Reduction Plan is REJECTED.

The panel then responds to the petition for contempt:

Plaintiffs’ response urges this court to initiate contempt proceedings against defendants on the basis of their failure to comply with our August 4, 2009 order. Action on this request is STAYED pending further proceedings detailed below.

The order requires defendants to submit a compliant plan, including explanations of their calculations and projections of reduction. It also addresses a few additional interesting matters:

1) On Sep. 17, CDCR issued a press release regarding rehabilitative program cuts, some of which were mentioned in their plan as essential for the reduction. The panel is referring to this press release, issued only one day before the submission of the reduction plan. What is up with that? asks the panel. Please let us know how this impacts any reduction measures you propose that rely on rehabilitation programs.

2) The panel wants to hear more about the use of rehabilitation and reentry in the community as a population reduction measure that might actually improve public safety.

And most importantly, in my opinion, (3): The panel is well aware of Governor Schwarzenegger’s reduction plan, which, as avid followers of this issue may recall, was submitted to legislators, approved in the CA Senate, and then gutted in the CA Assembly. How does that plan match up to the one the state submitted? Would it really lead to a population reduction? Secretary Cate’s involvement in the plan was widely reported in the press, says the panel. We read the papers. If this plan has promise, tell us how you’ll try to fold it into compliance with our order.

I like the panel’s reasoning quite a bit. It’s a well-informed, no-nonsense order, which is keenly aware of the political and legislative realities that occurred since the original August 4 order was issued. Number (3) above is a masterpiece of political maneuvering. First, recognizing that the original Schwarzenegger plan had some promise before it was gutted by the Assembly, and that it was supported by Cate, the panel gives CDCR an honorable path of retreat. If, indeed, this plan is folded into the new submission ordered by the panel, it will be a plan that the state has already stood publicly behind. Second, it is a brilliant hint on which direction to go, subverting the failed legislative process: Governor Schwarzenegger gets exactly what he wanted, except he gets it through compliance with judicial authorities rather than through the Senate and Assembly. And third, with the state backing the new plan, the order is more secure against appellate review from the Supreme Court.

Now we wait for 21 days, and we’ll report further.