Several commentators remarked this week of the role of images in the Plata litigation. Courtesy of Mother Jones, here is a series of images depicting the overcrowding crisis.
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Props to Rohen Peterson for the link.
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.
CA Prison Crowding Crisis Event
The Bay Area lawyer chapter of the American Constitution Society for Law and Policy is holding an event, free and open to the public, on California prison overcrowding.
When: May 10, 2011 – 12:30pm – 1:30pm
Where: Public Defender’s Office , 555 Seventh Street, San Francisco, CA
Speakers:
- Wendy Still, Chief Adult Probation Officer, City and County of San Francisco; Senate Appointed California Rehabilitation Oversight Board Member for the California Department of Corrections and Rehabilitation, Former Director of Rehabilitation for the California Federal Medical Prison Receiver; Associate Director, Female Offender Programs and Services
- Jeanne Woodford, Senior Fellow, Berkeley Center for Criminal Justice; Former Acting Secretary, California Department of Corrections and Rehabilitation; Warden, San Quentin State Prison; Chief Adult Probation Officer, City and County of San Francisco
And an introduction by:
- Rebekah Evenson, Staff Attorney, Prison Law Office; Counsel, Schwarzenegger v. Plata
Attorney attendees – you receive CLE credits for attending the event.
To RSVP, click here.
Debtors’ Prisons in California?
from DemandProgress.org:
Americans are in more debt than ever before, and the banks are going to new extremes to squeeze us for every last penny: If you can’t pay up, they’ll try to get you locked up.
The Wall Street Journal has been investigating the disturbing resurgence of debtors’ prisons throughout America — here’s one especially infuriating example of what the banks are up to: AIG got a $122.8 billion bailout from taxpayers — that’s $4,000 per American. Jeffrey Stearns happened to owe AIG $4,000 on a loan for his pickup truck. How’d the mega-corporation handle his debt? Did they forgive him because of the public’s recent largess? No way: They had him arrested in front of his family.
Here’s more on Stearns:
After being handcuffed in front of his four children, Mr. Stearns, 29 years old, spent two nights in jail, where he said he was strip-searched and sprayed for lice. “I didn’t even know I was being sued….It’s the scariest thing that ever happened to me.”
The Wall Street Journal’s data reveals that across the country, banks are having tens of thousands of Americans arrested over their debts. What happened to Stearns could happen to almost anybody.
Some state legislators are moving to outlaw the practice. Will you urge your lawmakers to join them?
Impact of Juvenile Facilities Closure on Adult Criminal Court Filings
Governor Brown’s plan to shut down all DJJ facilities has been scratched, due to budgetary difficulties. Nonetheless, it is important to pay attention to two recent reports by the Center on Juvenile and Criminal Justice on juvenile justice realignment.
The first report assesses the potential impact of DJJ institutional closures on adult charges. This, you may recall, was a cause for concern in some quarters. Nonetheless, the report finds that, while “California counties drastically vary in arrest and incarceration policies. . . even radical variations in reliance on State incarceration have no effect on juvenile crime rates or trends.” Here are the main findings:
In 2009, 24 counties employed locally self-reliant juvenile justice practices. Those counties were Alpine, Amador, Calaveras, Colusa, Del Norte, Inyo, Los Angeles, Mariposa, Mendocino, Mono, Nevada, Placer, Plumas, San Diego, San Francisco, San Joaquin, San Luis Obispo, Santa Clara, Sierra, Solano, Sonoma, Stanislaus, Trinity, and Tulare.
In 2009, 13 counties employed State-dependent juvenile justice practices that would significantly obstruct juvenile justice reform. Those counties were Alameda, Contra Costa, Fresno, Kern, Kings, Merced, Monterey, Orange, Sacramento, San Bernardino, San Mateo, Santa Barbara, and Ventura.
The thirteen State-dependent counties accounted for 37% of juvenile felony arrests but 61% of all direct adult criminal court filings and 46% of all DJF commitments, in 2009.
Kings County is the most State-dependent county, direct filing in adult criminal court 50 times more than Los Angeles, 39 times more than San Diego, and 36 times more than San Francisco in 2009.
Twelve California counties did not utilize the state system during 2009; either for a DJF commitment or an adult criminal court filing despite experiencing juvenile felony arrests during that year (Alpine, Amador, Calaveras, Colusa, Del Norte, Inyo, Mariposa, Mono, Nevada, Plumas, Sierra, and Trinity).
Despite having the highest juvenile felony arrest rate in the State, San Francisco County utilized direct adult criminal court filing one-eighth as much as the county with the lowest rate of juvenile felony arrests (El Dorado).
It would appear from the report that adult criminal court filings are a matter of organizational and prosecutorial culture, and the policies are not sensitive to the adult/juvenile divide. It is important to say that these findings make sense in the aggregate. I’m sure that, in single cases that raise true dilemmas, juvenile justice practices might be taken into account by individual prosecutors when making the call whether to charge someone as a juvenile or an adult. But the big picture does not seem to support a structural connection between the two.
The second report examined the capacity of county facilities to house juveniles. As the table shows, California counties currently have the space and infrastructure to house all juveniles who are now held in state prisons.
What does all this mean now that the governor has changed his plans? Perhaps it means that law enforcement officials making charging decisions can, and should, be more amenable to the possibility of charging juveniles with misdemeanors rather than felonies when possible. If the change does not occur as a grand top-down policy, it may have to occur as a bottom-up aggregate set of decisionmaking on the part of prosecutors.
Do Not Cure Overcrowding with More Prison Construction!
(image courtesy CDCR from a report on AB 900 projects)
About a year and a half ago, we reported on a study showing that population reduction orders may have adverse consequences: they lead to greater expenditures and the money comes from the welfare budget. Today we learn, via the Prison Law blog, that prison litigation may have other unsavory consequences.
Here is the abstract of Heather Schonfeld‘s Mass Incarceration and the Paradox of Prison Conditions Litigation:
In this article I examine how prison conditions litigation in the 1970s, as an outgrowth of the civil rights movement, inadvertently contributed to the rise of mass incarceration in the United States. Using Florida as a case study, I detail how prison conditions litigation that aimed to reduce incarceration was translated in the political arena as a court order to build prisons. Drawing on insights from historical institutionalist scholarship, I argue that this paradox can be explained by considering the different historical and political contexts of the initial legal framing and the final compliance with the court order. In addition, I demonstrate how the choices made by policy makers around court compliance created policy feedback effects that further expanded the coercive capacity of the state and transformed political calculations around crime control. The findings suggest how “successful” court challenges for institutional change can have long-term outcomes that are contrary to social justice goals. The paradox of prison litigation is especially compelling because inmates’ lawyers were specifically concerned about racial injustice, yet mass incarceration is arguably the greatest obstacle to racial equality in the twenty-first century.
As our readers will recall, this unhealthy dynamic played out perfectly in the oral arguments of Plata/Coleman. More than ever, and as I explained here and here, I am convinced that the inmate advocates should not have conceded that the three-jduge panel would consider new construction a suitable solution to the overcrowding problem. While her emphasis is on racial justice litigation and its discontents, Schonfeld’s findings also strongly confirm what anyone with common sense and some knowledge of prison history should know by now: If you build it, they will come. Any attempt to solve overcrowding through construction is an expensive short-term solution that will yield more overcrowding in the future. If we’re not humanitarian, let’s at least be humonetarian, and solve our prison crisis with early releases and a parole program that offers real hope and an escape from recidivism and the revolving door.
Report Back: Donald Specter and Paul Wright
Golden Gate University Law Professor Mort Cohen moderated a discussion between Prison Law Office 
Director Donald Specter and Prison Legal News Founder/Editor Paul Wright. Donald Specter told a series of fascinating war stories about litigation and advocacy he’s engaged in. He described pointing out to prison administrators that hearing-impaired inmates told to “Get down or we’ll shoot!” were in mortal peril. He said that last month he toured a CA prison and pointed out to wardens that overflowing toilets meant that prisoners in wheelchairs were getting sewage on their wheels and thus their hands. “Aren’t they supposed to be given gloves for that?” “No one told us.”
Next, he walked us through the genesis of the Plata/Coleman proceedings. In 1991, 7 years after Prison Law Office opened, 3 prisoners in Vacaville on psychotropic medication died from heatstroke because they were in overheated cells and insufficiently hydrated. Specter started the case because they had just won a San Quentin mental health and medical care case resulting in an injunction from Judge Marilyn Patel. Since implementing the injunction was too expensive, they moved those prisoners to Vacaville. PLO won a consent decree against Vacaville requiring adequate care and staffing for mentally ill inmates. In response, the Department of Corrections engaged in “bus therapy,” meaning scattering them around the state without regard to whether there were mental health workers at the prisons they went to. For example, many went to Pelican Bay State Prison, where there were only one psychologist and no psychiatrists. Having been burned twice, by San Quentin and Vacaville, PLO sued the whole prison system. They were only able to afford it with help from several SF law firms. They tried the case in 1993, and after a 3-month trial, an injunction issued in 1995. 6 months later PLO tried the Pelican Bay case, and Judge Henderson issued a similar order in 1995. In 1999 Specter started negotiating with the Attorney General’s office, and finally filed in 2001 because the AG said there were not enough doctors. Prisoners were at risk to receive bad care because they were being treated by doctors of the wrong specialties. The parties settled in 2002. In 2005 a receiver was appointed by Judge Henderson, but they still couldn’t fix the problems because prisons were at 200% of design capacity. Specter tried the present litigation before Judges Carlton, Henderson, & Reinhardt, against 51 interveners besides the State of CA, and is now finally waiting for a decision from the Supreme Court.
New (to me): Twice as many California prisoners kill themselves compared to the national average.
Specter said he finds most disappointing the degree to which the Legislature has come to depend upon the Judiciary for its decision-making. The Legislature has virtually abdicated its initiative in this policy area, relying on the courts to decide for them what to do with the prisons.
When asked how to fix the prison system, Specter said we need: (1) fewer prisoners, (2) less pay for prison guards / less concessions to CCPOA, (3) more programs in prisons to reduce recidivism rates and repeat crimes. Paul Wright said we need equality: in southern California celebrities can discharge their sentences in “pay-to-stay” state-run facilities where they get to keep their cell phones and laptops in their cells.
One of the best questions of the evening: “Does California have an emergency disaster plan in case of an earthquake on a scale comparable to Hurricane Katrina in New Orleans?” Specter cited the major fire that nearly destroyed a prison a few years ago, as evidence that even though there is such a plan here its implementation is suspect.
On another question, Paul Wright surprised many attendees by reminding us that a major obstacle to prison reform is the private prison industry that spends millions of dollars lobbying state governments to keep/put more people in prison.
Assembly Committee Critiques Receivership Spending
On today’s Chron, Marisa Lagos reports some disturbing findings from the Assembly Committee on Accountability and Administrative Review. Examining expenditures made by the federal receiver appointed by the court to oversee prison health care, the committee found extravagant spending with little or no effect on quality health care.
The findings, which are expected to be announced during a hearing today, show large salaries being paid to construction consultants on an abandoned project, who then turned around and charged taxpayers for housing, meals and dry cleaning. Prison health care spending has also grown by more than 65 percent since 2006, when a three-judge panel appointed the receiver after concluding that substandard medical treatment and neglect were killing one inmate per week.
Today’s public hearing will feature responses from the receivership, whose speaker explained to the Chron that —
all of the expenses paid out by the previous receiver were within federal reimbursement guidelines.
“Those contracts no longer exist, and after Clark arrived he cut back and eventually eliminated all of them,” she said.
Kincaid also noted that Kelso has made great strides toward reining in expenses. The overall death rate at prison health care centers has dropped by at least 10 percent since 2006, according to a presentation Kelso is scheduled to make to the committee today.
(Kelso recently reported continued improvements in inmate health care. Others found mixed results.)
Whether the expenses are attributable to the current or the former receivership should be an easy matter to check. What is less easy is to examine the complex connection between these developments and the overcrowding problem. It seems that both sides to the debate can use this report as ammunition for their position. As some readers may recall, one of the points made by the state in the Plata/Coleman litigation was that appointing the receiver should have been enough. Those concerned about early releases might argue that, had the receivership been more prudent in setting its priorities and spending its budget, there would be no need for the Plata/Coleman panel to order the population reduction. The counterargument, made by Don Specter in the newspaper article, is that regardless of how the receivership spends its money, as long as prisons are overcrowded no construction projects or expensive consultants will be able to improve the quality of health care behind bars.
Jerry Corrections Watch: Abolishing State Juvenile Facilities?
Today we begin a new CCC enterprise: Over the coming weeks and months, we’ll be closely monitoring Governor Jerry Brown’s correctional policies. During the gubernatorial race, we posted on Brown’s history with corrections, and with CCPOA, as former governor and as attorney general. It will be interesting to see whether Brown follows in Schwarzenegger’s footsteps in terms of thinking outside the box (perhaps sometimes too far out) about our correctional crisis.
Brown’s new budget deviates from Schwarzenegger’s pattern of budgetary cuts in the correctional apparatus, especially compared with painful cuts to other aspects of government. In fact, the Brown administration plans —
an ongoing augmentation of $395.2 million within the CDCR’s budget to correct previous budget shortfalls and more accurately reflect the operational costs within the adult institutions’ budgets. This augmentation will allow the Department to fully fund the salary and wages of authorized Correctional Officers, Sergeants, and Lieutenants, which is critical to ensuring that the adult institutions have the resources to pay security staff. The augmentation also provides funding to correct for a decline in the number of overtime hours available to CDCR to use within its adult institutions. Due to salary and wage increases for correctional officers over the last eight years, and no increase in departmental overtime funding, the overtime base does not go as far as it originally did. The use of overtime is critical to ensuring that all necessary staffing levels are maintained at CDCR’s institutions, and the decline in funded overtime hours has been a primary cause for redirections of funding from other activities.
In other respects, however, the Brown administration continues a trend from the Schwarzenegger administration: Diverting inmates from the states system to county-level jails. This move continues to draw ire from county officials, given the overcrowding in jails. The latest incarnation of these efforts is Brown’s plan to abolish the state youth correctional system and incarcerate juveniles exclusively at county-level facilities. Given the distressing facts we know about state juvenile facilities, and the decline in juvenile crime, this is not necessarily a bad idea. Barry Krisberg, however, voices a serious concern that counties will prosecute more juveniles as adults, to circumvent Brown’s policies.