Not Long Sentences or War on Drugs: Problem Is Prosecutorial Discretion

My colleague John Pfaff from Fordham (who is quoted extensively in Chapter 1 of Cheap on Crime) is an economist, and has tested the various explanations given for mass incarceration. His conclusion: the main cause for prison growth was not an increase in sentencing or the war on drugs. The problem is prosecutorial discretion.

“I understand where they come from. It’s true that legislators have passed a lot of new, tougher sentencing laws over the past 30 or 40 years. And it’s true that we have increased the attention paid to drugs. But in the end, there are other things that play a much, much bigger role in explaining prison growth. The fact of the matter is in today’s state prisons, which hold about 90 percent of all of our prisoners, only 17 percent of the inmates are there primarily for drug charges. And about two-thirds are there for either property or violent crimes.”

. . . 

“What appears to happen during this time—the years I look at are 1994 to 2008, just based on the data that’s available—is that the probability that a district attorneys file a felony charge against an arrestee goes from about 1 in 3, to 2 in 3. So over the course of the ’90s and 2000s, district attorneys just got much more aggressive in how they filed charges. Defendants who they would not have filed felony charges against before, they now are charging with felonies. I can’t tell you why they’re doing that. No one’s really got an answer to that yet. But it does seem that the number of felony cases filed shoots up very strongly, even as the number of arrests goes down.”

Crack, Torture, and Conspiracy Theories: Why and Which Stories Matter

Conspiracies and evil machinations have been on my mind lately, for a combination of reasons. One of them is that I recently gave a post-play talk at Cutting Ball Theater‘s production of Superheroes, a play by Sean San José performed in collaboration with Campo Santo. The play is a non-narrative, nonlinear take on the 1996 revelations of Gary Webb, then a journalist with the San Jose Mercury News. In a three-part series of articles titled Dark Alliance (later to appear as a book), Webb outlined the emergence of the crack cocaine epidemic in America’s inner cities. According to the story, CIA agents allowed Nicaraguans who financed the Contras to import cocaine into the United States with impunity and protected mid-level drug dealers from the consequences.

That the CIA was aware of drug importing was already known at the time; a 1989 Senate committee admitted as much, but stopped short of tying the CIA to the actual trafficking. Webb’s article provided the missing link. In response, the New York Times, the Washington Post, and the Los Angeles Times refuted and discredited the story, leading the San Jose Mercury News to withdraw it and sack Webb. After a stream of small jobs and financial ruin, Webb committed suicide.

A recent Hollywood movie, Kill the Messenger, reaffirms Webb’s findings. And at the talk I gave, many audience members, especially people of color who came of age during the heyday of the epidemic, expressed their firm belief that Webb was right, and that the CIA deliberately pushed crack cocaine into their neighborhoods with the express goal to destroy them. Michelle Alexander’s The New Jim Crow gives credence to this “strong Webb theory” as well.

Which raises two questions: what do you believe, and, does it even matter what the truth is? When assessing our belief in a story, it’s important to keep in mind the context in which we hear it. There is a lot of talk about white privilege these days, and it’s making a lot of people angry and defensive to the point that I’m not sure the term is useful or productive anymore. What some hear as anger and some as accusation can, however, be understood as an effort to explain to others that one’s lived experience cannot inform a complete view of the subject, and that it is sometimes helpful to open one’s eyes and hearts to the lived experiences of others, particularly if one’s social advantages in life are taken for granted and make them unaware of lives lived without these advantages. The protests erupting in many American cities, by people who are sick of police abuse and of the devaluing of black lives, are an expression of this frustration with not being heard and with having a particular set of experiences ignored and trivialized, even when we are presented with irrefutable evidence.

I think it’s important to take these experiences seriously. Not because I think, at this point, that anyone can productively point the finger at someone at the CIA as some archvillain who decided that dying from crack would be white America’s “final solution” to the black population (if anyone did, I’m sure they’ve found that their cure was much worse than whatever disease they assumed to fix.) I think these experiences matter because, regardless of the personal intent of actors in the system, even if one assumes a modest version of Webb’s theories, which merely ascribes ignorance and neglect, it is frightening that the CIA’s rush to protect the Contras and their allies would lead them to discount the horrific effects drug importing would have on neighborhoods and communities.

In many ways–which I said on Sunday night at the show–ignorance and neglect are worse than intent and malicious design. Because, if someone is evil and malicious, we can point a finger, accuse, (try to) prosecute. But if there is an entire system which, at some point, just decided that the bottom 15% of American citizens are dispensable, there’s not a lot to do and the fight is going to be much longer and harder. And also, because anyone who regards you as an enemy at least ascribes you some importance. On the other hand, if you are discounted, disregarded, and discarded, it’s because, as many of the protesters today are pointing out, the system has come to the collective conclusion that your life doesn’t matter.

Another thought I’ve had on this has to do with the credibility of the theory. This morning, the Senate Committee’s report on the CIA’s use of torture came out. The report tells you what your country does to people, many of whom are probably innocent, without informing you (if you don’t know, please educate yourself). Before 9/11, before the nonexistent weapons of mass destruction, before many other things happened, some of you might’ve thought this impossible, a joke. But those of us who grew up on shows like Mission: Impossible were raised on the premise that we are the good guys, and as such, we are entitled to treat the world as our personal sandbox: torturing, abusing, stealing elections in at least eight countries. Mission: Impossible was a work of fiction, but maybe it was designed to make the inconceivable possible, to ameliorate our feelings and desensitize us for the moment in which we learned the truth.

And what a terrific indoctrination job! In 1974, when we found out that the White House was plotting to steal an election and spied on the opposite party, the president had to resign.  Now, as we find out that a government agency is regularly listening to our telephone conversations and reading our mail, we’re not even apathetic; we’re jaded.

So the question is no more whether the crack cocaine conspiracy is believable or unbelievable. Pretty much everything is in the ballpark of the believable, and Webb’s exposé was not even that far from what the Senate itself admitted back in 1989. The question is, what are we going to do about this?

Book Review: Mass Incarceration on Trial by Jonathan Simon

Hidden from sight and forgotten from mind, American prisons in the last forty years have been horrific Petri dishes for medical neglect, interpersonal cruelty, and unspeakable conditions. California, which incarcerates the largest number of inmates (albeit not the largest per-capita), has been particularly notable for its abysmal incarceration practices, so much that, when commenting about his first impression of supermax institutions, Judge Thelton Henderson said to criminologist Keramet Reiter, “what was surprising to me was the inhumanity of the thing.” Jonathan Simon’s new book offers the general public a sobering look into California prisons through the prism of federal court decisions, which encourages humanism and empathy and does not allow the reader to look away.

 The book tells the story of several federal court decisions that tackled, head-on, the crux between mass incarceration and prison conditions. It begins with Madrid v. Gomez (1995), which exposed the conditions at supermax institutions and critiqued their application to the mentally ill, and proceeds with Coleman v. Wilson (2009) and Plata v. Schwarzenegger (2009), which addressed, respectively, serious mental and physical health care neglects, culminating in the Supreme Court decision in Brown v. Plata (2011), which affirmed the connection between the mass incarceration project and its outcome—extreme prison overcrowding—and the conditions behind bars. Simon’s account of the decisions, and the horrific abuse and dehumanization that brought them about, highlights two main themes. The first is the nature of American incarceration (and California incarceration in particular) as a veritable human rights crime of massive proportions, pulling it out of the American tendency to view things through an internal, exceptionalist lens. The second is the inherent connection between mass incarceration and prison conditions, which are frequently discussed separately in academia and public policy. To Simon, both are manifestations of an overall correctional mentality of “total incapacitation”: a systemic fear of crime and blanket assumption of dangerousness, coupled with insecurity about the ability to correctly gauge risk, which leads to indiscriminating incarceration of high-risk and low-risk individuals for lengthy periods of time without consideration of the conditions of their incarceration, or of the logistics necessary for their humane confinement. The court decisions reviewed in the book, argues Simon, signal a departure from this ideology, which he defines as a “dignity cascade”: a willingness to relate to the inmates as human beings who are entitled to more than “bare life”, but to personal safety, health, and human company.
Indeed, Simon’s book itself can be seen as an important contributor to a “dignity cascade”. Written in an engaging, accessible style, and providing the personal stories of plaintiffs in prison condition cases, Simon humanizes the individuals involves and evokes empathy and care for their preventable, horrible plight, while still making the bigger point that the violations are a systematic problem rather than isolated occurrences. While the book does not clarify the extent to which Simon attributes intent, or design, to the correctional officials, it certainly drives home the point that cruelty is the rule, rather than the exception, and the need to change that through a deeper commitment to treating humans with dignity and respect regardless of their transgressions.

There are a few places, however, in which Simon and I part ways. One of them is in his historical account of the path to total incapacitation, which paints the rehabilitative period in California corrections in what I think are overly rosy hues—especially when he ties the medical approach to incarceration to the eugenics movement. I also think that Simon gives the court decisions, which are undoubtedly important, too much significance in the overall scheme of California corrections. I wish I could be persuaded that these few decisions, the most recent of which and the focal point of the book was decided 5:4, were powerful enough to create a veritable “dignity cascade”. The book cites extensively dignity-promoting language from Justice Kennedy’s opinion in Plata, but does not include the parts in Justice Scalia’s dissent in which he referred to the inmates as “specimens”—a shameful opinion that I find hard to ignore with four Supreme Court Justices behind it. Even federal judges who are hailed as champions of inmate rights don’t always make decisions that promote dignity; in the fall of 2013, Judge Henderson (of Madrid v. Gomez fame) cleared the path to force-feeding inmates in solitary confinement who were protesting against indefinite segregation. Moreover, attributing the change in California—namely, the Criminal Justice Realignment—solely to the decision in Plata ignores the lengthy political machinations behind the Criminal Justice Realignment, which were driven by budgetary concerns and by other pressures as well as by the court’s decision. This is particularly problematic given the state’s acrobatic wiggling out of responsibility and its inability, and unwillingness, to follow up on the decision, almost to the point of contempt of court. While the language of the opinions themselves is important and meaningful, I wish we were offered more political and legal backstage access to the litigation, as well as more credit to the grassroots activism of inmates themselves, included but not limited to the hunger strike.
While I am less optimistic than Simon about a veritable transformation of public opinion about the mass incarceration project through federal court decisions, I find his call for dignity and for acknowledgment of the vast human rights violations incredibly inspiring, and like him, and anyone invested in the promotion of human dignity, I hope to see the spirit of John Howard’s progressive prison reform, and of the 1960s Warren Court decisions, channeled into this new era of prison litigation. After reading Mass Incarceration on Trial, no one can remain in a state of denial or indifference to the plight of fellow human beings, and this book is an important contribution not only to their dignity, but also to our own.

Patricia Krenwinkel Speaks Up

A few years ago we reported on Patricia Krenwinkel’s parole denial. Today’s New York Times includes an emotional opinion piece by Krenwinkel, looking back on her life and speaking about the Manson family, her crimes, the years in prison, and her self identity.

Will Krenwinkel ever receive parole? I doubt it. Even with our recasting of old and infirm inmates from risky to expensive, the Manson Family murders have a strong symbolic hold over our culture and imagination, and our revulsion of violent crime expresses itself in our fears and vindictiveness. As some readers may recall, another Family member, Susan Atkins, died in prison and was denied parole despite advanced cancer and disability.

But what I find notable here is something that sometimes gets forgotten in anti-prison advocacy: the importance of a message of responsibility. This is what makes me a radical realist. I truly believe that violent crime is real. I don’t think it’s common, nor do I think it justifies the mass incarceration machine and the human rights violations behind bars. But to victims, actual and potential, homicide, assault, and sexual abuse are frightening and damaging and debilitating. And no matter what environmental considerations we take into account, we must not discount the importance of taking personal responsibility. Not as part of a retributivist approach, but as part of a social prevention strategy.

When people who committed violent crime take personal responsibility for their crime, they teach us that redeeming the soul from shame and guilt is possible. They teach us that the victim is no “other” and that our shared humanity means we can have empathy for one another. It means that women are not hoes, cops are not pigs, rival gang members are not animals, people at work one begrudges are not monsters, old people are not dispensable, people of different ethnicities and family structures are not despicable. They teach us that life goes on behind bars, and that even though conditions may be atrocious and require a struggle, there may also be an internal struggle to mature and understand and know yourself better. And perhaps, if victims and potential victims are people, then the inmates serving time for violent crimes are not monsters, either–they are people, like you and me, who did terrible things, and while we expect them to pay a price, and to protect society from the danger they pose, we also should treat them as human beings.

State Budget 2014-2015

Just in the nick of time, the CA Legislature has approved the 2014-2014 state budget.

The passed budget contains a few highlights pertinent to the criminal justice system, which can be found in the trailer bill, AB 1468:

  • Persons with felony drug offenses will now be eligible for CalFRESH & CalWORKS; 
  • The budget allocates $2 million for licenses/I.Ds for parolees; and,
  • There will be a presumption of split sentencing for realigned offenders. 

The final budget bill, SB 852, can be seen here.

Gubernatorial Budget 2014-2015

The Governor’s proposed budget for 2014-2015 is out and its full text is here. Public safety is addressed on pages 65-88 and the correctional budget is addressed on pages 89-93.

The budget proposes total funding of $9.8 billion ($9.5 billion General Fund and $320 million other funds), which is 9% of the state budget – only slightly less than our expenditures on higher education.

The report reviews the history of realignment and the Plata litigation, mentioning the state prison system’s commitment to reentry as per the Blueprint titled The Future of California Corrections (here is the Blueprint, for your convenience.) The report emphasizes CDCR’s commitment to expanding the rehabilitation menu to reach 70% of all inmates.

The report goes, at length, into the changes brought about with realignment, including the following useful classification of the prison population:

Still, the state prison population is higher than projected in 2013 – about 135,000 inmates vs. the 129,000 projected. The parolee population is expected to increase in 2013-2014 and decrease in 2014-2015, as a result of realignment and the transference of post-sentence supervisees to the counties. There are also more juvenile wards than projected, as a result of an increase in first admissions and in parole violations.

The budget report explicitly refers to the legal battle waged around the 137.5% capacity cap mandated by the federal court, and assumes that the deadline for meeting the cap will be extended by two years. Remember the $315 million that Governor Brown appropriated at the very last minute of the last legislative session? If there is an extension, the budget will allocate the first $75 million of the money to recidivism reduction (state reentry, substance abuse treatment, services for the mentally ill, and a special reentry facility) and the rest to the general fund. However, should the population cap deadline not be delayed, the money will be invested in private prisons “to avoid the early release of inmates.” You can see where this is going; the money is essentially there to more-or-less extort the Three Judge Panel and circumvent its perceived intention. The message is – play nice and give us two more years, in which case we’ll invest in rehabilitation, or you’ll get private prisons galore.

More interesting stuff: A projected expansion of medical and elderly parole. The age cutoff for the latter is 60, which means 5.4 percent of male inmates and 4.4 percent of female inmates (as of June 30.) If they pushed the age cutoff back to 55, which makes criminological and gerontological sense (people age faster in prison, and people leave crime behind at an earlier age), you’d be releasing 11.2 percent of men and 10.4 percent of women. So – a step in the right direction, but plenty of room for improvement.

The report also mentions two other savings mechanisms: nonviolent third-striker releases per Prop 36 and juvenile parole per SB260. While the report doesn’t explicitly take credit for them, it is a bit surprising to read such positive reports of these from an entity that fought the spirit of these initiatives for years.

A considerable amount of the money will be spent on improving health scores in state prisons so they can be wrangled away from the Receiver. Much of the money is allocated to fund litigation, to fight the Receiver and class-action suits in court; the rest of it on improvements to pharmacies, facilities, and staff training. The report mentions the impact of Obamacare on health care for county inmates as opposed to state inmates.

Lastly, there are some notable comments on realignment in the counties. There’s a proposal to make split sentences the default, but it still leaves a considerable amount of discretion to county judges, and would still create big disparities between county. Also, the report notes that keeping long-term inmates in county jails is not a great idea, but does not volunteer to take them back into state institutions en masse (as Manuel Perez has just suggested) because of the need to comply with the Plata/Coleman caps. The state is willing to take in offenders who are serving 10 years or more – that’s about 300 years annually – but that, of course, raises the question why people receive 10 years in prison for non-non-non offenses in the first place.

Book Review: Random Family by Adrian Nicole LeBlanc

For ten years, between 1993 and 2003, Adrian LeBlanc followed the lives of four young people living in the Bronx, their trials and tribulations, their families, love affairs, and friendships, their struggles and moments of happiness and despair. Random Family is a remarkable work of nonfiction, of special interest to those who see prison as part and parcel of the American social fabric.

The book follows Jessica, a beautiful and charismatic young woman who becomes a love interest of “Boy” George Rivera, a successful heroin dealer, from her early teenage years, through her tumultuous relationship with George, through the fall of his heroin empire and the eventual incarceration of both of them. Jessica, who worked in George’s heroin mill, was sentenced to ten years in prison when George was sentenced to life without parole. A life of high excitement, sex, and three children, whom Jessica was too young and distracted to mother by herself, gave way to years of incarceration, away from her children and her familial support system. Jessica navigates the complex experience of out-of-state incarceration; becomes romantically involved with a guard, bears his children, and eventually sues the prison system for sexual abuse; and finally, in her early thirties, is released from prison and starts putting her life together and mending her relationship with her teenage daughter.

The other couple at the focus of the narrative are Cesar, Jessica’s young brother, and Coco, his girlfriend and mother of two of his children. Coco’s love for Cesar endures throughout his nine years in prison for offenses related to the death of a friend, and she struggles hard to maintain her optimism through several apartment moves, immense poverty, and the need to provide for five children from four largely-absent fathers. Cesar’s time in prison, including stints in solitary, efforts to improve his education and visits from family members and the four mothers of his children, sees him grow and develop wisdom and some understanding of the bigger set of circumstances faced by his family.

An array of mothers, absent fathers, aunties and uncles, friends of the family, and kin-of-choice surround the characters in their adventures and misventures. Thirtysomething year-old grandmothers Foxy (Coco’s mother) and Lourdes (Jessica and Cesar’s mothers) confront the choices made by their children replicating the choices they made, under similar circumstances. I found Milagros–a neighborhood friend who volunteers to raise a small army of children born by her friends, and whose possibly-queer sexuality is never explored in depth–particularly engaging and intriguing.

The narrative itself is as engrossing as a soap opera or a good thriller, but it is extremely valuable because of the overarching themes. The first one that struck me as immensely important is the ubiquity of sexual abuse in the lives of girls and young women. Virtually all protagonists of the book experienced sexual abuse, most of them as victims of family members and acquaintances parading through perennially unstable households. Men are held on to and fantasized upon, but cannot be fully trusted even when they are fathers, brothers and lovers. This shared experience makes the illusion of sexual freedom and agency that Jessica, Coco, and their family members seek problematic and somber.

A large number of children are born in the ten years spanned by the book, and virtually all women become mothers in their teenage years. Children are a source of pride and love, but also of anguish; their needs are impossible to address in overwhelming poverty, and they are consistently used–as symbols of love, as reminders of former love, as weapons to wield against sexual rivals, as instruments of hope for parents behind bars. The incarcerated parents–Serena, Stephanie and Brittany’s mother; Mercedes and Nautica’s father–leave gaping holes in their children’s hearts, and the letter exchanges and visits gain immense importance. The inability to count on any man–in prison or outside–for paternal stability saddles the mothers in the book with responsibilities that tax their young age and lack of experience. And the intricacies of love and family relationships are fascinating; nonmonogamies of various kinds are built and broken; protagonists alternate between tolerance, friendship, and hatred of their sexual and romantic rivals, acknowledging the fragility of the family unit; and the double standard, allowing for men’s multiple partnerships and families while begrudgingly accepting (and condemning) women’s, is present throughout the narrative.

The deep involvement in drugs, as users and sellers, permeates the lives of everyone in the book. They approach the world of narcotics as the only one available; in the words of David Simon in The House I Live In, it’s like working for the company in a company town. Incarceration is an inevitable way of life; many characters cycle in and out of prison, for crimes they committed and did not commit. They continue living, in their own experiences, and for their family outside; the weight of visits to distance prisons and expensive collect phone calls lies on the shoulders of twenty-year-old mothers and their multiple children. The struggles within prison are mirrored by the struggles of the family outside; economic difficulties, rivalries, the price of misplaced trust and generosity, all need to be handled in a reality that is oppressive outside as well as in.

We also see the protagonists constantly battling their crippling poverty and navigating the institutional world. Changes in welfare and educational policy (food stamps, HeadStart) transform the everyday lives of Coco and her family. New living situations, supervised and paternalized, require compliance to different forms of discipline. Every time a character seems to get ahead a bit, a new institutional issue pops up and needs to be urgently addressed.

One of the wonderful things about the book is that it doesn’t attempt to reduce the realities it describes to one of two frameworks: self-agency, which blames its subjects for their fate, or environmental factors, which absolve them of responsibility for their choices. LeBlanc herself, reflecting on her book ten years after its publication, speaks to some of this complexity in the context of female sexuality and its construction in the lives of her subjects:

From the distance of a decade, one thing that was operative—and it’s an ongoing interest—is the ways in which gender inequality, and the stigma of women’s sexual agency, narrows the road for female development. Teen-agers rightly fight the assumptions we place on them—many due to the fears in the adults around them, or the unlived lives of those adults, or the lies the culture tells. But, too often, consequences of attempts to explore freedom are attributed solely to sexual agency, or painted solely as victimization, and it’s much more complicated than that. Serena was keenly aware of how little all of it had to do with her, and that was something I felt was important to note.

This is something that is important to note not only with regard to the women’s sexual agency in the book. It’s true about criminal career paths, opportunities for financial development, and other issues. There are conscious choices being made by people who weigh the options in front of them to the best of their abilities. But the menu of choices is severely circumscribed by culture, class, locale, ethnicity, and gender.

This book, in its remarkable objectivity, in the narrator’s removal of herself from the narrative, in its perceptive insights into the lives of the people that inhabit its pages, is a must-read for anyone, regardless of political beliefs or interest in the prison system.

California Prison Overcrowding: State of the State, October 2013

And now, this is how things stood: the cat was sitting on one branch, the bird on another… not too close to the cat… and the wolf walked around and around the tree looking at them with greedy eyes.

                                                                           –Sergei Prokofiev, Peter and the Wolf (1936)

Developments in the last few months raise grim questions about the wisdom of leaving California to its own devices in trying to solve its overcrowding problem. Since the initial three-judge panel order in Plata v. Schwarzenengger (2009), the state has fought tooth and nail against the order to reduce population, and the struggle against the court mandate continued even after the Supreme Court confirmed the order, 5-4, in Brown v. Plata (2011). Numerous state appeals and motions to change the order and delay the timeline for population reduction (some of them bordering on contempt of court) have been thwarted. The last of these is the Supreme Court’s rejection of the state’s appeal yesterday. The Chron reports:

The high court’s one-line dismissal – which said only that the court lacked jurisdiction to step in – leaves intact a three-judge federal panel’s directive to the state to slash its population of 120,000 inmates in 33 prisons.

. . . 

Brown has been fighting for years the prospect of releasing some prisoners early, saying he was worried it could increase crime. Advocates and attorneys for prisoners have pushed for reforms in sentencing that they say would safely shrink the prison system.

Through a spokeswoman, Brown referred Tuesday to a statement released by California Department of Corrections and Rehabilitation spokeswoman Deborah Hoffman, which said officials were “disappointed the state’s case won’t be heard.”

But this rejection is far from being the big victory that inmate rights advocates are seeking. The original order in Plata was to reduce overcrowding in prison to 137.5% capacity, but it famously left it up to the state to find the means to do so. Moreover, Justice Kennedy’s celebrated opinion of the court in 2011 explicitly stated that one way of doing so could be via more prison construction. In 2011, activists and advocates felt comfortable in the knowledge that prison construction was impossible; the state was broke and public sentiment was that correctional expenditures were already excessive, to the point that former Governor Schwarzenegger suggested enacting a law that would prohibit correctional expenditures to exceed educational expenditures. It now, however, appears that “the money is there” to start privatizing California’s prisons en mass, via lucrative contracts with Correctional Corporation of America and the GEO Group.

California never had dealings with private prison providers on its own soil, though it did send 10,000 of its inmates to CCA institutions out of state and was a significant source of income for the company. This was not because of some principled objection to privatization; rather, it was because the California Correctional Peace Officer Association (CCPOA) actively resisted privatization out of concern for the guards’ employment. As Josh Page reveals in The Toughest Beat, CCPOA is so powerful in California that even a prison built in CA by CCA entirely on speculation was left empty. But these difficulties have been resolved: Governor Brown, historically a good friend and ally of the prison guards union, has promised them that they would be employed in these newly-constructed private prisons. This promise made old enemies – state prison guards and private prison providers – into allies, and sealed the deal toward a projected expenditure of $315 million of my money and yours on prison construction.

Obviously CCA is laughing all the way to the bank – a rare and enviable position for a corporation at the end of a recession and during a government shutdown. Here’s how this lucrative contract looks from Tennessee, home of CCA. The Nashville post reports:

The lease agreement between CCA and the California Department of Corrections and Rehabilitation calls for the state — which is under a court order to reduce overcrowding in its jails — to pay Nashville-based CCA $28.5 million per year starting Dec. 1. If the two sides agree to two-year extensions after three years, the rent will begin to increase gradually. CCA also has committed to spending $10 million on improvements at its 2,304-bed California City Correctional Center; renovations beyond that will be paid for by California.

“We appreciate the opportunity to expand upon our longstanding relationship with the CDCR and the state of California,” said CCA CEO Damon Hininger. “Our ability to react quickly to our partners’ needs with innovative solutions that make the best use of taxpayer dollars exemplifies the flexibility that CCA is able to provide.”

In conjunction with its California contract news — which had been expected since August — Hininger and his team also said CCA’s fourth-quarter profits will be hurt by a number of factors, including the spending needed to reopen its California City complex. Among them: Lower inmate counts related to its contracts with the U.S. Marshals Service and Immigration and Customs Enforcement agency, which are believed to be “due to the furlough of government employees and other consequences of the federal government shutdown.”

On top of that, CCA’s leadership has begun spending money to prepare vacant prisons in anticipation of more business from California late this year. The total impact of those factors on Q4 numbers isn’t yet clear, the company said. Analysts are expecting the company to earn 49 cents per share during the fourth quarter.

Investors chose to put more emphasis on the new California cash that will start arriving in December. As of about 1:35 p.m., shares of CCA (Ticker: CXW) were up about 1.5 percent to $35.81, putting them back in positive territory for the year.

If you’re still capable of keeping your breakfast down, you didn’t read carefully enough.

Governor Brown essentially put the ball in the hands of the federal courts, by saying – if you don’t give us some time to cope with the expected releases, we’ll have to recur to privatization and high-expense construction. This option was produced, as if out of a magician’s hat, in the height of the California Criminal Justice Realignment, which presumably redistributes overcrowding and internalizes its expenses by making counties, who are responsible for charging and sentencing, think about incarceration alternatives and manage their own convict population. One has to wonder what good this experiment is if, suddenly, we’re building private prisons in three counties and contributing $28.5 million per annum, to the foreseeable future and beyond, to CCA’s bottom line.

We will continue following up on developments and reporting as we have for the last five years.

———–
Props to David Takacs and to Jim Parker.

Researching the California Criminal Justice Realignment

I am in Seattle, WA, for the West Coast Law and Society Retreat, where we just finished a panel examining various perspectives on the criminal justice realignment. The panel featured several folks doing work on criminal justice reform from various perspectives: W. David Ball from Santa Clara University, Mona Lynch from UC Irvine, Jonathan Simon from UC Berkeley, and Katherine Beckett from University of Washington. We all talked about the research that is being done, the research that should be done, how the research community can be relevant and influential in making healthy decisions about corrections in California, and the impediments and challenges that lie ahead.

David Ball spoke about the importance of communicating with decisionmakers in the field. His fieldwork (with Bob Weisberg) involves prosecutorial decisionmaking after realignment. They interview prosecutors about the existence, or lack thereof, of consistent prosecutorial guidelines. In presenting prosecutors with a series of hypotheticals, which they ask prosecutors to rate on a seriousness scale, they expose the discretionary nature of realignment prosecution: The choice what to charge a person with could impact whether s/he will be regarded as a “non-non-non” and therefore housed in a jail. They have also uncovered the subtle interactions between prosecutors and the police, primarily areas of non-enforcement and non-prosecution.

Mona Lynch mentioned that the two types of realignment research done most frequently are policy evaluation, which is the only thing that can be funded (and has been done by several organizations, notably CJCJ and the ACLU of Northern CA), and legal research that focuses on Eighth Amendment arguments. The challenges ahead lie in the “hydra risk” of bad conditions in many jails in lieu of a few prisons. She suggested two socio-legal avenues for research: returning to, and revisiting, the classic courtroom ethnographies in a way that would uncover the framing and understanding of offenders (think David Sudnow’s Normal Crimes – first deciding what a person deserves based on a typology and then putting it together via the existing sentencing enhancements), and a study of the experience of jail incarceration (jails have been understudied; one great counterexample is Sharon Dolovich’s study of the Los Angeles County Jail.) This research may entail access issues we should overcome.

Jonathan Simon reminded us that realignment cannot be framed as an improvement on the system, but rather as a cover-up for a human rights crime that we will some day grow to regret: “torture on the installment plan.”He also encouraged us to challenge the assumption that rehabilitation and risk reduction programs need to be in place to combat the threat to public safety, problematizing the correlation CDCR draws between public safety and incarceration (with the drug war in the throes of death, are we reaffirming our commitment to locking up violent offenders for disproportionately long periods of time?).

Katherine Beckett provided a much-needed comparative context. She reminded us that other states are also punting their responsibilities to the county level. Also, many states have wobbler legislation, nonprosecutorial policies that yield county variation, and parole/probation reforms (as in Kansas), as well as drug law reform (New York State is an example). Her current project, reviewing prison admission data from 29 states, indicates that many states have seen a reduction in prison admission through these reforms, but these gains are offset by admissions for violence, public order, and property offenses, which are surprising given that arrest rates are falling. Beckett and other panelists highlighted the problem of entrenching the notion of “dangerous offenders”, whose mass incarceration is being
kosherized via the decarceration of the presumably less-dangerous drug offenders.

We had a very lively discussion with audience members:

Are there opportunities for graduate students who want to do empirical qualitative analysis of the realignment? We should know what other people are studying, and maybe throw in some questions in questionnaires (the Federal Sentencing Reporter issue on realignment is a great example.)

What are the interactions with, and effect on, immigration law? Has realignment changed charging practices with offenses that may or may not trigger deportation?

How do institutional pressures – courtroom workgroups, profiteers, unions, the market – play a role? Nobody wants their organization to shrink, and therefore prosecutors have a vested interest in keeping mass incarceration at its current level.

What role does impact litigation and critical resistance play in the process of realignment? We should keep in mind that a third of the jails already have population cap orders.

With regard to policy evaluation studies, those are difficult to do, because realignment is not the only thing that has changed. Some panelists suggested longitudinal studies (following up on cohorts of offenders) and comparative between counties. But there is also a concern about how to frame the dependent variable: What would it mean for realignment to “work”? And from whose perspective? What do we want or expect from our criminal justice policy? And, how to measure recidivism?

One suggestion made on the panel was to look at home detention and GPS as a possible alternative for mass incarceration. While the prison is unique as an institution producing what we now know as a human rights disaster, replacing it by home detention would also have adverse and alienating effects.

We also discussed the problematic aspect of thinking that mass incarceration is “normal”, and that we won’t be able to really think outside the box given the stake so many institutions and organizations have in the existence of mass incarceration.

Finally, a workshop on realignment is being planned for October 2014, and we hope to be there and be able to say more about how realignment works.

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I’d very much like to invite the panelists and audience to send over links to research on realignment, so we can have a repository of resources here at the CCC blog.

Governor’s Prison Plan Announced

Gov. Brown’s website unveils the main features of his prison plan, AB 105, which:

  • Authorizes up to $315 million in immediate in-state and out-of-state capacity.
  • Lays the foundation for longer-term changes to the criminal justice system, in collaboration with the Legislature and stakeholders.
  • Strengthens existing local efforts (SB 678) to manage offenders by increasing the amount of funding that county probation departments receive if they can serve felony probationers locally and keep them from coming to prison.
  • Requires that if the court modifies the order in a way that reduces the cost of compliance, the first $75 million in savings will go to reducing recidivism.

The full text of the bill is here. Hear the Governor explain the plan here. More commentary on the plan in a later post.