CCC Field Trip: Past, Present and Future Prisons in Philadelphia

This week I have been away from California, at the American Society of Criminology annual meeting, which took place in Philadelphia. The conference itself was very dense and there were many interesting papers and roundtables (including an excellent panel devoted to David Johnson and Frank Zimring’s new book on the death penalty in Asia); however, what really moved and excited me was my morning visit to the Eastern State Penitentiary, the oldest modern prison in the United States, and possibly in the world.

As readers versed in penological history probably know, Eastern State Penitentiary owes its unique design to Quaker reformers. Quakers had always been interested in issues of criminal justice and corrections (among other things, their publication Struggle for Justice is credited for fueling the left-wing prong of the determinate sentencing movement); in this case, they aimed to reform previous correctional institutions, which kept prisoners together in large cells with abundant violence and very little in the way of sanitation or basic living conditions.
The alternative was to be a true penitentiary; a place that would turn the inmate’s attention inward and encourage reflection and true remorse. For this purpose, prisoners would be placed in solitary cells and in absolute silence. They would have no contact with the outside world, no books to read save for the Bible, and no communal work to be done. Their brief exercise break would be enjoyed in a solitary yard surrounded by tall walls.
The irony is, of course, that today’s Quakers have come to see solitary confinement as an evil, taxing the prisoners’ well-being and sanity, and are strongly advocating against it. Here is their shocking and sad report on the effects of solitary confinement in California prisons.
The architecture designed to ensure these conditions, designed by John Haviland, is truly a marvelous feat, considering that construction took place in the early Nineteenth century. Its imposing facade, complete with gargoyles, reveals little of the interesting features within. The prison is built as a panopticon, with a central area from which one can see into each and every one of the cellblocks. The panoptic design, enabling efficient and immediate surveillance, was later adopted in many prisons around the world.
There were, of course, many documented violations of the silence requirement; prisoners did attempt to speak to each other through holes and pipes. Such transgressions were severely punished. At the same time, a rivaling system in New York had prisoners working in communal areas, but in complete silence. This innovative perspective delighted visitors like Alexis de Tocqueville, but horrified others, like Charles Dickens, who considered it worse than any form of physical torture.
In later years, the Penitentiary abandoned the solitude requirement, relaxing the conditions somewhat and creating a communal exercise yard, complete with a baseball diamond.
Some of the more notable inmates’ stories are presented in the excellent audioguide; for example, that of a brave inmate – a free Black man – who helped free his wife from slavery and was convicted and imprisoned in Pennsylvania for doing so (incidentally: cell blocks were segregated until 1961). Al Capone’s cell, complete with luxury items he was allowed to keep by the grace of the guards, is also restored.
After this fantastic visit, I had an excellent meal at Mugshots, a cafe across the street, where I found Grid magazine. Among various uplifting reports on sustainability initiatives in Philly, I found a delightful piece about City Harvest, a project which enables Philadelphia inmates to grow vegetables and feed the city’s poor and hungry citizens. Beyond the project’s practical benefits to the city, it provides a healthy, growth-oriented environment for the inmates, who learn some work skills and some basics of agriculture and nutrition. I was very moved by the fact that, as one of the people interviewed in the article mentioned, many of these imprisoned men and women had never had a chance to work in a green environment or be in close proximity to nature before.
Thinking about these projects, after visiting the prison, made me hope that we will do a better job learning from the mistakes of the past to envision a better future, and that we never let a grand program steer us away from basic human concern for society’s weakest link.

Netherlands Closing Prisons

The Netherlands is closing 8 prisons, eliminating 1,200 corrections jobs — http://www.nrc.nl/international/article2246821.ece/Netherlands_to_close_pris — due to declining crime rates(!) and the economic crisis.

If crime continues to decline, the nation will have to choose between closing even more prisons, versus housing imported Belgian prisoners. California is to Belgium as Arizona is to the Netherlands?!

Jerry Brown and Prisons


With Gavin Newsom’s departure from the gubernatorial race, the serious Democrat candidate left standing is Jerry Brown, former Governor and current Attorney General. While the options may still be open, Brown’s recent record with regard to the prison crisis merits some attention.

Brown is familiar with the correctional crisis, which has existed throughout his career as a public official in the state. The number of prisoners per capita increased throughout his previous gubernatorial positions, and his current position as Attorney General has required paying close attention to CDCR, particularly in the context of the Plata/Coleman ruling. Immediately after the original order in August 4, Brown declared his intent to appeal it, and he was closely involved in devising the state’s plan for submission to the panel, a job which exposed him to petitions from rights organizations to comply with the order.

Brown’s vast experience in the political system has solidified his array of friends and foes. In his position as Attorney General, Brown has worked to terminate Kelso’s receivership of the prison health system, calling his plans “wildly excessive” :

“The court should terminate this unaccountable prison receivership and its $8 billion construction plan, restoring a dose of fiscal reality to the provision of inmate medical care in California,” Brown said in a prepared release. “The federal receivership has turned into its own autonomous government operating outside the normal checks and balances of state and federal law.”

On the other hand, the CCPOA’s relationship with Governor Schwarzenegger, which was rife with animosity, is likely to be considerably better with Jerry Brown as governor. Like the CCPOA, he strongly opposed Proposition 5, which advocated treatment options for nonviolent drug offenders.

Californians are already familiar with Brown, and will take into account his position on a variety of matters. As one example of many, Brown considered Proposition 8 constitutionally indefensible and urged the court to void it. Nevertheless, we should be attentive to the way the prison crisis will be presented by the different gubernatorial candidates. This situation should exit the invisible realm and be confronted with practical, creative plans by whoever will be at the state’s helm.

Partisan Politics


The difficulties in creating sentencing reform in California are better understood when considering the big picture. Yesterday’s Sac Bee included a fascinating piece analyzing lawmakers’ voting patterns, which demonstrates that they are extremely likely to vote with their party. The polarization, argues the piece, has increased in comparison with recent years.

What would be the best strategy to achieve prison decrowding under these circumstances? One possibility, which has yielded some success, is framing the question in terms of savings. Another one would be to implement Governor Schwarzenegger’s decrowding plan as a response to the recent Plata/Coleman court order – a solution that the court has alluded to.
The future may depend on the outcome of the gubernatorial race. Let’s hope that the next governor understands that California’s future depends, to a large extent, on the state — and cost — of its prisons.

Exporting Defunct Sentencing Policies to Other Countries


One of the things comparative law scholars are interested in is the way in which legal policies are adopted in different places in the world. There are nuances and differences that stem from the cultural background. For example, my colleague Jim Nolan has studied the differences between drug courts in the U.S. and their counterparts in Europe and Canada, finding that reforms have yielded somewhat different reforms. He does conclude, however, that the end result is perhaps closer to the American version than these other countries intend.

There seems to be even less restraint when some countries adopt U.S. sentencing policies, despite what we know about their failure and financial implications.

We could take quite a number of countries as an example, but I’m choosing Israel, mostly for reasons of convenience and familiarity with its legal system. Israel has had, since the late 1940s, a penal code based on a less extreme version of indeterminate sentencing: Every offense has a maximum penalty and a few (such as sex crimes and assault on a police officer) have minimum sentences as well. The parole board is allowed to release inmates only after they have completed two-thirds of their prison sentence, so the overall effect of releases is far less extreme than the equivalent in pre-determinate-sentencing California.

The Israeli system has constantly been in a process of Americanization. U.S. legal initiatives arrive in Israel, usually with a 15-to-20-year delay since their implementation there, and adopted without much systematic, evidence-based reflection as to their success.

A few recent examples include a large-scale plan to shift to determinate punishment. Granted, the new system will not consist of legislator-generated “triads”, but it will include a sentencing commission, whose membership is yet to be established, which will decide on “median punishments” for all offenses. These will be the starting point for departures, and the law lists a series of aggravating and mitigating circumstances. The former list is much longer than the latter. In addition, Israeli legislators are hard at work expediting their discussion of several punitive suggestions, including harsher punishment in a long series of crimes (with hardly any evidence of a statistical rise in crime rates), and particularly, of a version of the Three Strikes Law, which, in the Israeli case, will include a 12-year imprisonment sentence for the third felony. The law is somewhat less intense than the Three Strikes Law, but its effects on the prison population will be notable.

As of April 2008, Israel had 305 inmates per 100,000 citizens (the U.S. equivalent at the time was 751). I am not sure whether this rate includes Palestinian detainees and have not been able to find out. There are reports that Israel is already seeing a dramatic rise (close to 40 percent) in the number of inmates since the late 1990s. There has been prison litigation with regard to prisoner rights and conditions. In addition, any of these sentencing initiatives does not only have an effect on judicial discretion, ratcheting up sentences, but also on conviction rates. The Israeli system, just like the American one, is adversarial and works primarily through a very high percentage of plea bargains, leading to a 99.8 percent conviction rate. Each of these new litigation pieces serves as leverage for bargaining. What is going on, then? Are Israelis blind to the American crisis? Don’t they know this doesn’t work?

The answer is, I don’t know; however, part of the explanation lies in the triangle of politicians-media-public, which has been analyzed by many scholars as a petri dish for moral panics and harsher sentencing (see for example this terrific piece by Burns and Crawford on the panic surrounding school shootings). The Israeli media is rife with critique of judicial leniency. In some important ways, they are not wrong. Human sentencing and decisionmaking has a quality of mercy that computers and set tables do not have. In 1986, the late Yael Hassin published the findings of a study that compared release rates between the parole board (consisting of a judge and members in therapeutic professions) and computer-generated statistical prevention. The computer predicted more recidivism and was more often right. Maybe this intangible quality of mercy has effects that spill beyond recidivism prediction to sentencing. And maybe that’s not necessarily a bad thing; we will never know how many “false negatives” the computer from Hassin’s experiment kept within walls, and would not have reoffended had they been released.

Another part of the puzzle may lie in the different nature of Israeli politics. As opposed to the situation in the U.S., criminal justice discourse in Israel (a multi-party system placing the Israeli-Palestinian conflict at the top of its priorities, leaving room for little else) it does not map neatly onto other political issues that generate bipartisan debate in the U.S. So, when such initiatives are brought up, there is little in the way of organized political response against them.

This analysis might, of course, be different for different countries, each of which examines its penal policy through its particular political and cultural lens. The big question that remains is why the decisions to adopt American policies do not take into account the abounding evidence as to their failure and, in these trying financial times, of their fiscal implications.

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This post is based on an idea on which I wrote a short piece in Hebrew with Yosef Zohar. Props to Yosef for coming up with the idea and thinking about it with me.

Words From Within Walls

In the course of working on the blog, my correspodence has become more varied than it used to be. Among other things, I get, and treasure, mail from inmates, former inmates, and their families. Sometimes, inmates provide me with accounts of, and perspectives on, their life in prison, and I wanted to share a few of those with readers.

Justin Paperny blogs about his incarceration experience, and has also written a book, titled Lessons from Prison. Paperny has recently been released from a federal prison camp, where he was sent for his part in a Ponzi scheme. In the book, he tells of the misguided decisions that led him to prison in the first place, but also of his transformation within walls. In the blog, and in the book, Paperny describes a daily prison routine that is very different, and in many ways calmer, than that of an inmate at an overcrowded state prison. An undercrowded institution, the federal prison camp allowed inmates to pursue some of their interests; in Paperny’s case, what proved particularly effective and redemptory was his exacting exercise and fitness routine, which put him in a better place to examine his life choices. The book really drives home the issue of personal responsibility, which sometimes gets lost amidst social and environmental concerns, and is particularly important in the context of white collar crime.

A completely different (and no less interesting) resource is a blog by Reginald Wheeler, who has spent more than 25 years in prison for a robbery. As appears to be the case from the first post on the blog, Wheeler’s fate was decided by sentence enhancements on a robbery, and his blog is incredibly reflective on the long prison years that followed.
Among other things, he writes:
But I’m not writing this to get sympathy. Sympathy is not what the young people need to be feeling.
They need to be feeling and understanding fear, confusion, shame and determination.
They should feel the fear of doing something foolish, which lands them nowhere.
They should understand the confusion about how something could happen and how they would survive if they made the same choices I made.
And they should try to understand the shame that I feel — the same of knowing that I let so many people down.
Now I know that I’m better than that.Finally they must learn determination in a way I didn’t learn it — the determination wish I had known: the determination not to throw my future in the toilet like that.
As I simply size up my milestone, I can only acknowledge that I had to deal with the pain of this hurtful milestone because I didn’t respect, appreciate or fulfill life’s normal milestones — births, graduations, weddings, etc.
It’s a simple lesson that I’ve had to learn: If you don’t respect and embrace life’s good offerings, you will struggle through and feel the pain of life’s bad offerings.
These two very different experiences have made me think of something we don’t usually discuss on the blog. Our focus is mostly on the social, political, and economic concerns that surround the prison experience; by speaking about the problem in broad terms, we do not mean to argue that choices, and personal responsibility, are not available. We simply draw attention to the many ways in which the common understanding of choice and personal responsibility does not apply to the prison experience. That is not to say that the choice is inexistant, and that any of us should not feel the obligation to be the best person we can be — even under the most exacting and limiting circumstances.
I wish that prisons could be, for many more people, institutions of growth, understanding and reflection; I wish that conditions were such that personal responsibility could be assumed and learned, and that better conditions were provided that would allow a broader array of choices for exiting inmates. The system we currently have does not provide these options for a large number of inmates. Overcrowding is not only physically constrictive; it is also soul-deafening. Reflection, remorse, and resolutions to do things better should be part of the prison experience; but they are one side of a coin, whose other side requires providing our prison population the tools to engage in these important processes.
Stay tuned in the next few days for a book review of Sunny Schwarz’s Dreams from the Monster Factory, which recounts her experience creating restorative justice programs with the San Francisco Sheriff’s Department, which is an interesting attempt to reconcile between the socio/institutional deprivation and the attainment of personal responsibility.

Compare and Contrast: Empty Beds in NYC


Robert Gangi’s New York Times Op-Ed yesterday provides an interesting contrast to California’s overcrowding. In New York, prison population has declined from 71,600 in 1999 to about 59,300 today, accompanied by a decline in crime rates. Gangi, who is Executive Director of the Correctional Association of New York, believes that further improvements are necessary:

For starters, state lawmakers could repeal the Rockefeller mandatory sentencing provisions that remain on the books. They could also increase the number of participants on work release. In 1994, more than 27,000 people were in this time-tested program that helps them manage the transition back to their communities. Today, about 2,500 are enrolled.

In addition, the state could reduce the number of people — last year, more than 9,000 — who are returned to prison for technical parole violations like missing a meeting with an officer or breaking curfew. Most experts agree that for about half of these people it would be safer and smarter to enroll them in re-entry programs or provide more supervision. Also, more prisoners with good institutional records could be given parole. And eligibility for so-called merit time, which reduces prison terms for inmates who complete educational and other programs, could be expanded to people convicted of violent offenses many years ago.

Taken together, these actions could cut the state’s prison rolls by 5,000 to 10,000 more, enabling the governor and the legislature to close at least four prisons the size of Attica, which holds 2,100 inmates, or a greater number of smaller facilities.

The Rockefeller Drug Laws, which the Correctional Association protests, were enacted in 1973 and included harsh minimum sentences for drug offenses, including non-violent possession. After decades of this problematic regime, a current 2009 reform is rolling back some of its effects, including cancellation of minimum sentencing, an expansion of therapeutic options, and, interestingly, allowing retroactive resentencing of drug offenders. This unusual step stems from the 2005 conversion of certain drug offenses from class “B” offenses, which in NY require indeterminate sentences, to lower class offenses. Offenders sentenced before this change will be able to petition the judge and be resentenced, a possibility that will affect 1,500 current inmates.

These are bold steps, and one can only guess what we would be able to accomplish were our processes and priorities similar to the ones of the New York legislature.

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Props to Jessie Daniels for drawing my attention to this.

KPBS Program on Prison Crisis

Yesterday, KPBS broadcasted a program on the prison crisis, interviewing Lt. Anthony Gentile at the Folsom State Prison about the dramatic changes in prison population and managements since the 1970s. Other people mentioned, quoted, and interviewed, include Jeanne Woodford, Lance Corcoran, former CDCR secretary Roderick Hickman (speaking about his relationship with CCPOA), other prison employees and inmates. The program provides an overview of the crisis from multiple perspectives.
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Props to Jerry Jarvis for sending this my way.

CDCR’s Annual Report Published

(click on images to enlarge)

CDCR has just published its annual report, which you can download in its entirety. Secretary Cate’s optimistic introduction reads:

In the midst of significant challenges, the California Department of Corrections and Rehabilitation (CDCR) has quietly had a remarkable string of successes in the last year. While it is easy to focus on the negative, there have been many positive developments at our agency.
The report mentions some of these developments:

  • Population reduction: 166,569 inmates in August 2009 (as opposed to the all-time high of 173,479 in October 2006); 111,308 parolees in August 2009 (as opposed to the all-time high of 128,108 in August 2007).
  • Decrowding through out-of-state transfers: nearly 8,000 inmates – meeting the goal set in AB 900
  • Decrease in number of “bad beds” from 19,618 (all-time high in August 2007) to 10,568 in August 2009 (lowest level since the 1990s)
  • Some progress with the new evidence-based system for addressing parole violations
  • Increase in participation in academic (50 to 62 percent) and vocational programs (42 percent to 55 percent) (data here is updated to December 2008 – why?)
  • Continuous improvement with medical services (the Receiver, Clark Kelso, credited here as working collaboratively with Secretary Cate)
  • Improvement with the “prisons go green” project
  • Increasing reliance on GPS monitoring
  • Reforms in juvenile correctional system
  • Implementing risk and needs assessment in all 12 reception centers (including Chino?)

Some important budgetary numbers:

  • The average annual cost per california inmate in 2008-09 was $48,536. Of this, aproximately $16,000 per inmate goes toward medical, mental health, and dental care.
  • Between 1998 and 2009, CDCR’s budget grew from $3.5 billion to $10.3 billion. In the 2009-10 budget, CDCR received a $1.2 billion cut, which is expected to be achieved through significant cuts to headquarters, operational savings, “right-sizing” of DJJ, and population reductions.

We’ll be devoting a few posts over the next few days to an analysis of the data provided in specific sections of the report. We hope you’ll find them useful.

Zimbabwean Prison Decrowding

Looking for another country to teach California some lessons about dealing with overcrowding? Try Zimbabwe. President Mugabe, the NYT reports, is releasing women, minors, the terminally ill and prisoners sentenced to 38 months or less who had served at least a quarter of their terms – 1500 prisoners in total – to relieve overcrowding.

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Props to Tal Niv for alerting me to this interesting tidbit.