Haney on Psychological Consequences of Imprisonment in California

Today I attended a compelling lecture by Dr. Craig Haney of UC-Santa Cruz on the individual psychological consequences of imprisonment in California. His talk was especially well-timed after Dr. Haney was cited six times by the U.S. Supreme Court’s recent decision in Brown v Plata. You may also recognize Dr. Haney as the lead author of the famous Stanford prison study from 1973, in which twenty healthy males, evenly divided into groups of “inmates” and “guards,” acted so brutally that the 2-week experiment was suspended after 6 days.

Since then, Dr. Haney has spent over 30 years touring and studying prisons and prisoners. He began with an overview of the recent expansion of the U.S. prison system, because overincarceration has led to Plata and “prisonization” (stay with me here). The U.S. rate of imprisonment stayed stable around 200,000 from World War I to the mid-1970s, when the War on Drugs sentencing mentality started. From 1973-1993, the CA crime rate hovered around 100 per 100,000, but the incarceration rate increased from 100/100,000 to 350/100,000.

Dr. Haney pointed out that, being a generation older than me, he could still remember a time when prisoners had their own cells. Cellmates, or double-celling, was still seen as an abomination in the mid-1970s. His archives include letters from the prison wardens of 40 years ago, decrying this inhumane practice. Now, of course, prison cells house at least two inmates as a matter of course.

Prison used to aim to rehabilitate prisoners. Through work assignments, education, and other programs, inmates were taught useful skills or conditioned for better lives. In the mid-1970s, states began to veer away from this century-old aim: Haney referred us to Cal. Penal Code § 1170(a)(1), passed in 1976, which begins: “The Legislature finds and declares that the purpose of imprisonment for crime is punishment.” Half of CA prisoners released in 2006 had had no assignment whatsoever: no program, no job, no education. All those years, wasted. In 1973, prisoners averaged a 6th-grade reading level, and this is still the same today.

As recently as the 1970s, people suffering from serious mental health conditions were usually committed to mental hospitals for in-patient treatment. Nowadays, mental health patients are more commonly imprisoned. In the U.S., the rate of hospitalization of mental health patients has fallen from 450 per 100,000 residents over 15 years old in 1950, to only 50/100,000 in 1990. People who would be hospitalized in 1950-1980 are more commonly incarcerated in 1980-2010.

Dr. Haney used this background to discuss institutional history as social history. By taking over so many people’s lives, for so long, commonly at such young ages, the state has become not only a parent, but an abusive parent. Imprisonment retraumatizes inmates who have already experienced the trauma that led to their incarceration in the first place. Prisoners suffer tremendous institutional risk factors: abuse, maltreatment, neglect, an impoverished environment, diminished opportunities, exposure to violence, abandonment, instability, and exposure to criminogenic role models.

Haney’s last slide explained “prisonization” as a set of normal psychological responses to abnormal situations. Prisons create dependence on institutional structures and procedures: newly-released people may suffer a lack of volition and independence as they are separated from these strict regimens. Prisons damage interpersonal skills or even prevent future relationships, by engendering interpersonal distrust, “hypervigilance,” suspicion, emotional overcontrol, alienation, psychological distancing, social withdrawal, and isolation. Prisons diminish self-worth and personal value, and can result in Complex Post-Traumatic Stress Disorder — PTSD inflicted by slow, continuing trauma as opposed to a discrete event.

In the Aftermath of Plata: Wrong Releases and Declining Crime

Two big stories, coming in the heels of Brown v. Plata, present a spectrum of issues that should have us occupied in the next few years as California struggles to find its way out of mass incarceration.

The first story appeared in the Los Angeles Times on the very next morning. Apparently, due to a computer error, hundreds of parolees were wrongfully released. The timing of this story is rather peculiar; it coincides not only with the decision, but also with the budget cuts to CDCR and to parole departments in particular. Apropos parole, a proposal for medical parole has begun making the rounds in the legislature.

The second story, featured in yesterday’s Chron, is about the decline in violent crime in California, which, in accordance with the national trend, has fallen to a 44-year low. As many experts have demonstrated, this decline has very little to do with incarceration, and is the outcome of various longitudinal developments unrelated to the administration of justice.

Shame on You, Justice Scalia

Our previous post was devoted to Justice Kennedy’s opinion in Plata, and discerning readers may have noticed we did not discuss the dissents. I didn’t comment on those because, to me, they represent the worst kind of populist alarmism and rhetoric of fear, and pretty much the last thing we need now. But I have to say something about the rhetoric in Justice Scalia’s dissent, because being silent about such matters is tantamount to letting them happen without outrage in the public sphere.

Justice Scalia writes:

One would think that, before allowing the decree of a federal district court to release 46,000 convicted felons, this Court would bend every effort to read the law in such a way as to avoid that outrageous result.

Uhmmmm, no.

The “outrageous result” is having human beings caged and soiled in their feces and urine for want of medical treatment, Nino. The “outrageous result” is that people needlessly die waiting to be examined and diagnosed. Your comments about the lack of standing of inmates are disenfranchising and dehumanizing. It’s fairly obvious that the thought that there, by the grace of God, goes you, has never crossed your mind. Clearly, because during the oral argument, when Justice Sotomayor was horrified and heartbroken to hear about these inflictions of needless suffering, you told her off, saying “don’t be rhetorical.”

Your cruel mockery of human beings like you and complete lack of human empathy really shine through in this remarkable passage:

Most of them will not be prisoners with medical conditions orsevere mental illness; and many will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym.

This has to be one of the most backwards, Lombrosian, objectifying, smug paragraphs ever written by a judge about inmates, or really, about anyone. It recalls Justice Holmes’ infamous comment in Buck v. Bell, that “three generations of imbeciles is enough”, ironically shattering the life of someone who was not mentally defective.

These are shameful words, but Justice Scalia is not the only one who needs to be ashamed. We all share in the shame. Because the bottom line is that all the horrific abuses in the California correctional system would not have occurred, despite alarmist politics, fear-mongering media, redball cases, and a powerful prison guard union, had it not been for our collective lack of empathy for our fellow Californians behind bars. We have “othered” crime long enough. Empathy has been a long time coming. Fortunately, five out of nine Supreme Court Justices were able to find some within their hearts. Here’s hoping that many taxpayers and policymakers follow their example.

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.

Will you urge California’s lawmakers to shut down the debtors’ prisons? Just click here to automatically email your state legislators.

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?

Out-of-State Incarceration and Recidivism

With more Californians sent out of state to be incarcerated in privatized institutions, one of the key questions is whether such institutions work better or worse in the long run. We recently wrote about the corruption and harm involved in privatized institutions, but what happens after people are released?

A new report for the Hawai’i Attorney General’s office (dear colleague David Johnson is the PI for the report) examines how Hawai’ian parolees incarcerated on the mainland do by comparison to those kept on the island. The many problems about this arrangement notwithstanding, the issue of recidivism is an important one.
Johnson and his colleagues find no statistically significant difference in the recidivism rates of Hawai’i-incarcerated and mainland-incarcerated parolees. While the study is not perfect, and the two inmate populations differ substantially in their criminal profiles, it is a reminder to question the wisdom of sending inmates away. While cost is a consideration, it is only one of many considerations. The report relies on the concept of humonetarianism to explain that “lean justice” does not always equal “lenient justice” and is not without its discontents. As the report states,

States and their leaders have a responsibility to care not only about crime control and the costs of incarceration but also about the present welfare and future well- being of criminal offenders and the communities from which they come. The vast majority of offenders will come home one day, and they will be our neighbors.