Two important events have just occurred more or less simultaneously with regard to the decrowding debate.
First, the gutted prison reform plan, that will lead to the release of 17,000 inmates and the transfer of minor parole violators to local jails, has passed and is moving forward, for the Governor’s signature.
And second, the Supreme Court has declined to grant a stay to the State with regard to the Plata/Coleman order. The State’s arguments have been rejected, albeit not on the merits (that will be decided on appeal). CDCR will therefore have to come up with a decrowding plan for 40,000 inmates by Sep. 18.
We will elaborate later on the possible connection between these two events.
Today, the State filed for a stay regarding the Plata/Coleman order to come up with a 137.5% decrowding plan. Here is the application itself, which I placed on a free media host for your convenience.
The gist of what is going on is as follows:
In order to obtain a stay, the state has to show:
a reasonable probability that four Justices will consider the issue sufficiently meritorious to . . . note probable jurisdiction;
a fair prospect that a majority of the court will conclude that the decision below was erroneous; and
a likelihood that “irreparable harm” will result from the denial of a stay.
In close cases, the Court is called upon to do a balancing act of harms and interests.
The brief argues that these four conditions apply and require a stay in the Plata/Coleman case.
The importance and drastic scope of the three-judge-panel’s relief will probably merit jurisdiction. The Federal interference in this case is unprecedented and the injunctive relief is dramatic. Questions of law concerning the PLRA will be raised (see our previous post on this) as well as issues of federalism and judicial restraint.
Overcrowding is not the “primary cause” for the constitutional violations; a myriad other factors that have to do with prison administration and personnel are also to blame. Even if overcrowding is the main factor in the violations, decrowding will not necessarily result in solving the problem (note that the State does not disagree that there are constitutional violations and the state is to blame! Also note that the gravity of the problem, and the fact that even overcrowding will not solve it, is offered as an argument on behalf of the State!). In addition (this, IMHO, is the strongest point in this brief), the court has not justified its decision to set the reduction level at 137.5%. There are also some procedural issues that might work on the State’s behalf, such as the fact that no district court has ordered reduction.
Obeying the order will create irreparable harm by diverting necessary resources to the decrowding plan (this is rather odd in light of the expected savings!) and by putting communities at risk;
Finally, the brief argues, if this is a close case – which it isn’t – then there’s good reasons to weigh factors in favor of a stay. Since decrowding will probably take two years, there is less harm in waiting than there is in going ahead with the plan.
While it’s difficult to be sympathetic to the State’s arguments, especially in light of the fact that there is no argument about the ills and their reasons, two things stand out: first, the argument about the decrowding level is not bad and has not been addressed by the court in a tight enough way in the original decision. Second, SCOTUS may buy the argument that there is no harm in waiting. As to this second point, a plausible argument is that there is MUCH harm in waiting. In the meantime, more people are languishing without appropriate care and any time wasted is time during which unnecessary ailments and deaths may occur.
We’ll be keeping a close watch on these proceedings and reporting on developments.
It’s always refreshing to take a look at our correctional mess from the outside. Yesterday, Scott Hanson, over at Grits for Breakfast, commented on our crisis, explaining “why Texas didn’t go there“.
Ironically, California may be suffering because it’s trying to confront this problem with a Democratic majority. The turning point for Texas’ prison system came in 2003, when Republicans found themselves in charge of both chambers of the Texas Legislature for the first time since Reconstruction. That year, Speaker Tom Craddick named Ray Allen from Grand Prairie House Corrections chair, and Allen was immediately confronted with projections that Texas’ already full prisons would require billions in new construction to keep up their astronomical growth rate.
[R]educing incarceration by diverting offenders to probation and keeping more of them there until they’re off supervision – became the central strategy Texas employed to reduce incarceration growth. In 2005, Jerry Madden became House Corrections chair and – along with the Democratic Criminal Justice Chairman in the Senate, John Whitmire – sponsored legislation to revamp probation in order to provide more meaningful supervision (especially through reduced caseloads) and alternatives to incarceration, but leaving sentence lengths, at least on the books, alone.
I wonder whether a Republican majority in the CA legislature would be the ticket to resolve this; that is, whether such a majority would have a sense of responsibility for responding to the crisis and therefore come up with good solutions. We have seen quite a few examples of nonpartisan initiatives to save system costs by avoiding death row expansion, legalizing marijuana, and the like. The thing to remember is that the big architects of large-scale historical decarceration efforts have been, traditionally, conservative politicians. I strongly recommend reading Kathlyn Taylor Gaubatz’s interesting book Crime in the Public Mind, which mentions, among many other interesting things:
Few may remember, however, that Ronald Reagan was not always the standard bearer of the get-tough movement. In an account of changes in California’s criminal justice system, Caleb Foote writes that “during Ronald Reagan’s tenure as governor, his administration first ordered the [Adult] Authority, as an economy measure, to reduce prison population by increasing parole release rates, a policy which enabled the state to close one prison and underpopulate San Quentin and some other prisons. Then the Reagan administration, attacked from the southland for being soft on crime . . ., reversed course and ordered the Authority to tighten ship.” We know that the tides of public opinion began their harsh upswing during the years of Reagan’s first governorship, and here is a revelation that his actions as a political leader were not always oriented to a crackdown on crime.
Yesterday’s Assembly decision, emptying much of the initiative to reform our broken system from its content and neutralizing any healthy effect it would have on prison population, is not only a disappointment; it is also a bitter reminder that, while cost-related arguments have the potential to bring issues to the forefront of public discourse, they can’t always carry the day against the older genre of arguments, consisting of unsubstantiated moral panics and political hysteria.
It was a sobering experience to read this morning’s paper, which, in addition to these disappointing news, included a report on the unveiling of a hideous crime: kidnapping, rape, and a nightmarish “compound” where the alleged perpetrator kept his victims. Beyond the immediate horror at these events, my concern is that such abnormal, outlier experiences are perceived, and raised, as the norm, feeding our fear and insecurity.
“Crime” is a generic name for a large universe of phenomena that are very easily distinguishable from each other. The Garridos of this world are very different from the vast majority of imprisoned Californians; for every Phillip Garrido there are tens of thousands of arrestees, inmates and parolees whose property and drug crimes are closely linked with the environmental and spatial dimensions of their lives. Yes, there is some free choice and rational calculation in all of this, and the best path out of prison life must include a certain component of assuming responsibility (a little about this in a following post this weekend); but these choices exist in a universe in which not everyone is offered the same set of alternatives. When the limited opportunities contribute to crime, we should be thinking about providing opportunity, in tandem with requiring responsibility. The key is to understand that the answer to crime needs to be more tailored to suit a particular situation or social reality. There is no “one-size-fits-all” answer to crime. And certainly, shaping our response to crime based on the demons we hear about, perceive, and sometimes create, will not generate anything we will be pleased with in the long run.
Who, and what, poses a risk to public safety? What are we afraid of? Those are two different questions. The former requires hard evidence and the willingness to accept the answers we might not have assumed. The latter, unfortunately, is what has been informing criminal justice policy since the Nixon Era. Our budget woes had the potential to shake us out of indifference and generate a real change. The crisis brought together lawmakers of both parties, police officers, reformers, academics, prison personnel, and Federal judges, all of whom realized that these difficult and trying times were an opportunity to generate real change and turn around the collision course that we have been navigating since the 1970s. I fear this opportunity has been, to a large extent, missed by yesterday’s decision.
For the Governor’s disappointment with the Assembly’s decision, read here; for other discontents, see here.
Yesterday, the CA Assembly made so many changes to the Senate-approved Governor’s plan to release 27,300 inmates and reform sentencing, that it is hardly recognizable. The Chron reports:
The changes would reduce the state’s prison population by about 16,000 inmates instead of 27,000, and would save the state about $325 million instead of $525 million.
Set aside were some of the most controversial parts of the legislation, such as allowing sick and elderly inmates to finish their sentences at home or in community hospitals, where they would be monitored by GPS tracking devices, according to Shannon Murphy, a spokeswoman for Assembly Speaker Karen Bass, D-Baldwin Vista (Los Angeles County).
The bill also put aside plans for creating a sentencing commission to revamp the state’s rules on punishment and parole, an idea backed by many Senate Democrats including President Pro Tem Darrell Steinberg, D-Sacramento. The bill, in its original form, passed the Senate by a 21-19 vote last week.
The original package, negotiated in part by Bass, stalled in the Assembly late last week despite Democrats’ strong majority in the lower house of the Legislature.
The revised bill eliminates changes to some crimes – such as writing bad checks and receiving stolen property – so that they are always charged as misdemeanors. The bill was revised to reset the grand theft threshold to $950, higher than the current $400, which was set in 1982, but significantly lower than the $2,500 that the Senate approved last week.
What’s left in the bill are changes to the state’s parole system so that some low- and moderate-risk offenders would not be subject to parole revocation; allowing certain felons who violate probation to serve time in county jails; and allowing the early release of inmates who complete certain rehabilitation programs such as earning GEDs.
This is, to say the least, very disappointing. We will follow up with a more thorough analysis later in the day. For now, we’ll just point out two things:
1. This is proof that budget-based arguments, without a deep understanding of what is ailing the system, can only take us so far. OldThought is still around, and unsubstantiated public safety arguments can still win the day.
2. If the Prison Law Office needs any proof that the state is incapable of carrying out the appropriate and necessary decrowding plans, for the purposes of the Plata/Coleman appeal, this is it.
(image courtesy City of Pasadena Police Department website)
This remarkable statement, by Bernard Melekian, President of the Police Chiefs Association, has been circulated quite widely. I reproduce it verbatim for you.
A few comments: I think this is a fine example of the fact that, as Rahm Emanuel (in)famously said recently, we don’t want to let a serious crisis go to waste. If something good has come out of all this, it is the willingness of different parties to thoughtfully and systematically examine what we have been doing so far and where to go from here.
***
Because of all of the information out in the press and at the capitol, I wanted to reiterate Cal Chiefs’ position on the Corrections Budget legislation. It is important to note that in spite of the various rumors and allegations, our position has not changed in the last few weeks. The floor letter we sent on the 19th is attached again as a reference, and our comments to Jillena Eifer, the Police Advisor to Assembly Member Pedro Nava, appear below to clarify our points on the issue:
“As you can see, the underlying concepts of Alternative Custody and Banked Parole are fundamentally sound, and the Police Chiefs Association believes that those details can be ironed out. What IS critical is that the legislative language implementing the Corrections Reduction package be transparently and openly shared. I strongly believe that the various groups who have issues concerning the Corrections package can iron out all of those details in a constructive fashion that enables the legislative goals to be achieved in a fashion that also protects public safety.
The Sentencing Commission issue is the most troubling part of the package. First, we do not believe it ought to be linked with the Corrections Population Reduction package, at all. One piece does not relate to the other. We are willing to sit down and discuss the Sentencing Commission issue as a free-standing matter, unrelated to the Corrections Reduction package. With respect to the Commission, we believe it is possible to negotiate a construct that is consistent with the long-standing position of the California Police Chiefs Association (and virtually every other law enforcement organization) and also assures that there is a serious examination of California’s sentencing structure.
Bottom line is that I believe that all of the dissenting law enforcement organizations are of the same mind – constructive solutions are possible if only policymakers will take a deep breath and engage in collaborative discussion of the Corrections package. If Assembly Nava can successfully communicate that to legislative leadership, we could then spend the next few days in serious discussion to craft a package that would meet everyone’s needs, rather than engaging in the counter-productive efforts of trying to squeeze 41 votes for a package that could be a consensus item if there were only open discussion.”
President Bernard Melekian
California Police Chiefs Association | P.O. Box 255745 | Sacramento, California 95865-5745 | United States
***
props to Kara Dansky for alerting me to this fascinating letter.
I’d like to conclude this series of posts by pointing out a few strengths and weaknesses of the panel’s decision. These are important to keep in mind, since the decision will undoubtedly be appealed to the Supreme Court.
Strengths
All in all, my impression is that the panel not only made a brave, no-nonsense decision, but it also supported it quite firmly and thoroughly. The opinion does not beat around the bush, and it addresses each of the PLRA concerns with a well-supported array of data. Moreover, the decision benefits from using the defendants’ own experts and plans. After all, there could hardly be a disagreement about the population explosion as a key complicating factor in each and every aspect of prison life, certainly in providing essential services; the government more or less has conceded it, and its own plans to deal with overcrowding are remarkably similar to those proposed by the court. The only difference seems to be in scope.
Weaknesses
I see three main issues that may be brought up against the decision on appeal; two of them can be easily addressed, and the third one is rather open to speculation.
First, the court has rejected the government’s argument that it has already intervened quite dramatically in the matter by appointing the receiver and special masters, and yet, it has argued that these institutions will still have plenty of room for improvement and hard work after the overcrowding crisis is alleviated. This argument coudl be said to undermine the statement that overcrowding is the primary reason for the dysfunction .The proper response to this argument, I believe, is to differentiate between necessary and sufficient factors. While alleviating overcrowding is an essential factor in improving medical services, it is by no means sufficient, and much work – staffing, construction, generating best practices – will still need to be done.
Second, while the three-judge-panel’s jurisdiction emerged from a discussion limited to the medical system, the judges may be said to exceed these limits by discussing other ills of the prison system, such as the broken parole apparatus and recidivism rates. However, a close reading of the decision reveals that these additional issues are addressed as a direct response to PLRA requirements; recidivism rates and other issues are not discussed in and of themselves, but in the context of public safety and remedy feasibility.
What seems to be a problem, though, is not so much the language of the decision or its reasoning, but its timing. The order was given days after the Governor came up with a reduction plan of 27,300 inmates. Since the court itself states that no number is “magical”, a possible argument before the supreme court could be that the reduction the state is willing to embrace is “enough” of a reduction. The answer to the “how much” question is rather difficult, and I can see the Supreme Court, in the spirit of federalism and state autonomy, leaving the amount of releases to the (already exercised) discretion of the Governor and prison authorities. Those who rejoice in the panel’s courageous decision today should hope that its reasoning for the percentage of reduction will stand.
Wait! Won’t reducing the prison population compromise public safety?
The panel answers this question in the negative; while, as the decision states, it is impossible to anticipate what kind of effect the order will have on public safety, the court believes there are ways to craft a reduction plan that will not compromise the state’s responsibilities to protect the public. The panel makes the following points:
The experience of imprisonment in an overcrowded institution itself has a criminogenic effect; therefore, reducing its scope might actually benefit public safety. The current incarceration experience backfires in terms of protecting the public, by being a “petri dish” for crime. Overcrowding hinders the possibility to properly classify inmates, thus housing them according to levels of risk. It also hinders the inmates’ access to rehabilitation programs. Under such conditions, inmates learn new criminal behavior while “doing time”, which actually increases recidivism rates.
Rather than mindlessly throwing the prisons’ doors open, there are thoughtful ways to reduce population without compromising public safety. The court agrees that a wholesale release of inmates without a thoughtful plan is not a good solution. It proposes several ways to reduce prison population without compromising public safety: credits for good behavior and achievements, which act as an incentive to pursue rehabilitation options; diversion of technical parole violators, who constitute a large population of returning inmates; diversion of low-risk offenders with short sentences; sentencing reform; increasing rehabilitative programs in prison; and modifying statutes. The court points out that most of these have been endorsed by the state; faithful blog readers will probably remember them from the Governor’s reduction plan of 27,300 inmates, which we discussed here. The plan, therefore, need not be all that different from the Governor’s plan, save for the fact that the reduction is larger in scope.
The assumption that community resources will not suffice for containing the released inmates is exaggerated. The panel considers several ways in which the community might be affected by population reduction. It concludes that the releases will not have a significant impact on population in local jails. They also state that parole supervision would not be affected, since many of the problems with it stem from inadequate resource allocation, particularly from an unnecessary focus on low-risk parolees and technical violations. The court also rejects the (cynical?) assertion that rehabilitation/reentry resources will be taxed by the reduction, noting (cynically?) that the considerable financial savings from a population reduction could be put to good use creating more rehabilitation and reentry programs, thus contributing to public safety in a more effective way.
There is no evidence of a significant relationship between early releases and a rise in crime rates. Empirical evidence presented by experts supported the conclusion that “population reduction measures have been adopted in various states without an adverse impact on public safety”. This alleviates concerns over the order’s potentially adverse impact on public safety.
There is no public safety reason to exclude mentally ill inmates from the release order. Numerous experts supprted the assertion that community-based treatment is a better strategy to handle mentally ill inmates. While it is possible that some mentally-ill patients may do better being treated within people rather than outside, this is not true for many others, whose treatment will be more effective – and cheaper – outside prison walls. The release plan could take these classifications into account, by crafting, for example, good credits so that “only those mentally ill individuals with the greatest level of psychiatric stability and the greatest potential to “voluntarily” follow up on outpatient care would be eligible, at least until appropriate community programming is in place.”
The panel then moves on to figure out which remedy would be enough to solve the problem, and yet no more than enough; the statutory limitation requires them to craft the least intrusive measure possible. While they believe that the plaintiff’s request for a reduction to 130% capacity is “reasonable and finds considerable support in the record”, they opt for a lesser level of reduction. Establishing that the cut should be between the levels of 130% and 145%, they opt for a cut to 137.5%.
1. Where should population be reduced?
The panel considers, and rejects, the possibility of requiring population reductions in specific institutions: “[T]he constitutional violations identified by the Plata and Coleman courts exist throughout the California prison system and are the result of systemic failures in the California prison system”. Moreover, “defendants have never contended that the problems at issue in Plata and Coleman are institution-specific”. In addition, the panel sees specific institution capping as micromanaging, and potentially more of an intrusion into the state’s ability to manage its prison population than an overall cap.
2. How should population be reduced?
The process for planning the population reduction is a combination of collaboration and coercion: The plan will come from the state, but be modified by the court with input from the plaintiffs and other parties, and the courts will retain jurisdiction to ensure compliance or modify further. This model, which was proposed by the plaintiffs, leave the state with some flexibility about the best mode of reduction, and follows similar orders given in other cases.
3. How much population reduction is necessary?
Aaaah, this is the $64,000 question. While the panel believes that the plaintiffs’ request for a reduction to 130% capacity is “reasonable and finds considerable support in the record”, the decision opts for a lesser level of reduction. The panel cites Dr. Craig Haney, who pointed out, in his expert opinion, that “there’s nothing magical” about any specific percentage, including 100%. The court points out that even in institutions at 100% capacity there are problems stemming from crowding, and that California prisons, by design, are unable to provide an appropriate level of care to even 100% of the population. However, the panel mentions that the plaintiffs requested a reduction to 130%, relying on plans drawn by the Governor’s own personnel. Experts’ estimates, however, wavered between 130% and 145%. The latter, according to some of the testimony (including Haney’s, in response to some wardens’ suggestions), is a very conservative estimate of what would be required, taking into account physical space and staffing. The court phrases its final estimate as follows: “Rather than adopting the 130% limit requested by plaintiffs, we will out of caution require a reduction in the population of California’s adult prison institutions to only 137.5% of their combined design capacity – a population reduction halfway between the cap requested by plaintiffs and the wardens’ estimate of the California prison system’s maximum operable capacity absent consideration of the need for medical and mental health care. At the adult institutions’ present design capacity of 79,828. . . (CDCR weekly population report as of August 27, 2008), this equates to a population of just below 110,000. Should the state prove unable to provide constitutionally adequate medical and mental health care after the prison population is reduced to 137.5% design capacity, plaintiffs may ask this court to impose a lower cap. Similarly, should it appear that the provisions set forth in the plan adopted by the court will not achieve the expected population reduction, plaintiffs may seek to have the plan amended.”
1. Is overcrowding the primary cause for the medical system’s dysfunction?
The court reponds in the affirmative. It starts by noting that “[a] prison system’s capacity is not defined by square footage alone; it is also determined by the system’s resources and its ability to provide inmates with essential services such as food, air, and temperature and noise control”. It then moves on to explain the causal link between overcrowding and poor medical services, not before mentioning that four former CA prison administrators testified in support of this assertion.
The testifying administrators pointed out to several ways in which overcrowding hinders health care. First, the decision mentions that, in general, overcrowding leads to a set of priorities impacted by various emergencies, thus relegating health services to a lower place in the list of priority.
Second, the court emphasizes several problems stemming from the lack of space: the inadequate use of reception centers to house inmates rather than treat them, the severe shortage of treatment space, and the inability to place inmates according to classification because of space constraints. This is a problem particularly with respect to mentally ill inmates, who “languish in clinically inappropriate settings”.
Third, overcrowding directly impacts the quality of care: “Bad bed” areas are understaffed, unsanitary (thus exacerbating the risk of spreading infectious diseases), and toxic for the severely mentally ill.
Fourth, there are other ways in which overcrowding hinders care. Understaffing is a problem not only with respect to medical and mental health stuff, but also with respect to the custodial stuff expected to keep the peace and escort inmates to receive medical treatment; the pharmaceutical system is unable to keep up with delivery demands; there are huge backlogs in receiving specialty medical care; and the growing need to rely on lockdowns as a way to keep the order hinders the provision of medical care during such times.
Finally, the impossibility of manually filing the huge number of medical records leads to inadequate record keeping, which leads to chaotic administration.
The panel then draws a line of causality between the overcrowding and some of the horrendous examples of preventable misdiagnoses, disease exacerbation and preventable deaths. It also points out that overcrowding exacerbates the plight of mentally ill prisoners. A variety of experts – including former prison administrators, prison scholars, administrators, physicians, and psychologists – are cited as supporting the causal link. Moreover, the court points to the litigation history in the Plata and Coleman cases as proof of the worsening of the situation, due to overcrowding, despite efforts to improve medical care with other measures.
2. Is there really no other way?
The court’s response, in a word, is no. As support, the panel examines a series of alternative measures, pointing out their inadequacy as solutions to the problem.
First, the panel states the inadequacy of further construction as a remedy to the problem. Currently, there are no plans to build new prisons; re-entry facilities would take years to build and would not provide immediate relief; and building medical facilities is now compounded by the financial crisis. In general, construction is inadequate because it could not be completed in a timely manner, though if it were to be completed, it could be part of the solution.
Second, additional hiring is, according to the panel, impractical, given the difficulty of filling in current vacancies. As the decision points out, the overcrowding issue in itself discourages new hires, and a less crowded system would be more conducive to quality hiring.
Third, the court responds to the state’s argument that the appointment of the receiver and special masters has been enough. While some progress has been achieved, it hs been slow. The receiver and special masters themselves testified as to how overcrowding has hindered their ability to improve the system. In addition, since solving the crowding problem will not immediately make the medical system’s deficiencies disappear, their services will still be needed after the acute difficulties are resolved.
The panel also rejects the state’s reliance on shipping inmates out of state as a solution, not only because of the small numbers that can be accommodated, but also because of the unknowns regarding the standard of care in those states.
