Prison Law Blog

Sara Mayeux

Posts Tagged ‘prison

New Book: “From Black Power to Prison Power”

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Here’s a new book likely of interest to readers of this blog (h/t: Al Brophy at the Faculty Lounge): From Black Power to Prison Power, by Donald F. Tibbs (Macmillan, 2012):

This book uses the landmark case Jones v. North Carolina Prisoners’ Labor Union to examine the strategies of prison inmates using race and radicalism to inspire the formation of an inmate labor union. It thus rekindles the debate over the triumphs and troubles associated with the use of Black Power as a platform for influencing legal policy and effecting change for inmates. While the ideology of the prison rights movement was complex, it rested on the underlying principle that the right to organize, and engage in political dissidence, was not only a First Amendment right guaranteed to free blacks, but one that should be explicitly guaranteed to captive blacks—a point too often overlooked in previous analyses. Ultimately, this seminal case study not only illuminates the history of Black Power but that of the broader prisoners’ rights movement as well.

Prisoners’ rights to unionize last came up on this blog during the Georgia prison strike (?) of 2010. You can read the full Jones opinion here.

Supreme Court Blocks Federal Lawsuit against Private Prison Employees

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Earlier this week the Supreme Court threw out a federal prisoner’s federal lawsuit against employees of the GEO Group, saying the inmate should have pursued his claims in state court. (Which he’s now missed the deadline to do.) As Jess Bravin explains:

Under high-court precedents, inmates in federal institutions can file federal lawsuits against prison employees for mistreatment that violates the Eighth Amendment prohibition of “cruel and unusual punishments.”

By an 8-1 vote, however, the court refused to extend that right to inmates held in private prisons operated under contract to the U.S. government. In an opinion by Justice Stephen Breyer, the court observed that in contrast to federal employees, whom prisoners generally can’t sue in state court, employees of the private company enjoy no such immunity.

The AP has these details about the suit:

[Inmate Richard Lee] Pollard wanted to sue for his treatment after he fell and fractured both of his elbows at the privately run Taft Correctional Institution in Taft, Calif.

Pollard said GEO officials put him in a metal restraint that caused him pain, and refused to provide him with a splint, making his injuries worse and causing permanent impairment. He sued in federal court for money, claiming GEO officials had violated the Eighth Amendment prohibition on cruel and unusual punishment.

Justice Ruth Bader Ginsburg was the sole dissenter, writing, “Were Pollard incarcerated in a federal- or state-operated facility, she would have a federal remedy for the Eighth Amendment violation he alleges. I would not deny the same character of relief to Pollard, a prisoner placed by federal contact in a privately operated prison.”

The case is Minneci v. Pollard; you can read the full opinion as well as lots of commentary over at SCOTUSblog.

Prison Rape: Myths and Realities

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USC law professor Kim Shayo Buchanan has a (relatively) recent article about sexual violence behind bars, which you can download here. UC-Davis law professor Angela P. Harris calls the article “a tour de force of critical legal theory.” Here’s Harris discussing Buchanan’s findings, over at Jotwell:

Buchanan’s observations about the taken-for-grantedness of sexual violence in prison and the seeming complacency about it in the outside world eerily recall a time when women who were raped would routinely be blamed for dressing too provocatively. Her analysis of how male victims of sexual violence are similarly ignored, disbelieved, held responsible, or told that it must have been consensual clearly draws on second-wave feminist analysis. Buchanan also draws on this analysis when she shows how the world of prisons and jails is as effectively shielded from legal scrutiny as was the home in an earlier era. Then, as now, the creation of a “private” sphere free from legal intervention made room for an informal order patrolled by patriarchal violence.

Finally, Buchanan’s article is about a racialized sex/gender panic on the part of white men that crystallizes in the joke I repeated at the beginning of this review (and hundreds of variations scattered throughout popular culture). In her fascinating cultural history, Manliness and Civilization, Gail Bederman suggests that the male fantasy of vulnerability to rape by a “big black dude” may have its roots in the late nineteenth century, when white male masculinity entered a period of crisis from which it has never fully emerged. Buchanan demonstrates that the fantasy persists as a “myth” about prison rape – the belief held by experts as well as laypersons that the perpetrators of prison rape are disproportionately black and the victims disproportionately white. There is no good evidence to believe that prison rape is raced in this way. Yet the fantasy persists.

To learn more about the issue of prison rape, visit the website of Just Detention International.

Written by sara

January 10, 2012 at 11:31 am

Upcoming Event: January 27-28 Symposium on Women and Incarceration at UCLA

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The UCLA Law Review’s upcoming symposium may be of interest to readers in Southern California, and it’s free and open to the public — you just need to pre-register here. Here’s the full description:

Overpoliced and Underprotected: Women, Race, and Criminalization

Recently, mass incarceration has been theorized as a system of racialized social control. This frame, however, often relies on long-standing gender reductionism that posits the primary subject of punishment and criminalization as male. At the same time, the unprecedented growth of female incarceration has spawned a host of gender-sensitive interventions, yet the discourses that are gender-sensitive often marginalize if not entirely erase the distinctive racial dimensions of the punitive turn in public policy. This Symposium will interrogate how criminalization is mediated through various intersections of race, gender and class and will shed light on the dimensions of racialized criminalization that are gendered differently.

Moreover, this symposium will investigate the parallel and reinforcing nature of institutions that prepare certain populations for incarceration and function to exclude them upon their release. In examining various logics of punishment, the discussion will not be limited to formal boundaries of the criminal justice system, nor the processes that govern adjudications of innocence or guilt. Instead, this symposium will interrogate the processes of control that parallel and intersect with the prison system such as the public health, welfare, foster care and education systems. Examining these overlaps reveals the way that systems which are seen as policing race have gender dimensions and those which are seen as embodying gender norms police them along racial lines. Lastly, we will examine the ways in which formalistic examinations of the criminal justice systems and constitutional limitations on state action can obscure these race and gender dynamics. 

The full lineup of panels and panelists is at this link.

Written by sara

January 10, 2012 at 8:55 am

New Book: When American Religion Meets American Mass Incarceration

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Insofar as America is (descriptively) exceptional,* two key differences setting America apart from its peer nations are mass incarceration and popular religiosity. Assuming the U.S. is most usefully compared with Canada, Australia, and Western Europe (I acknowledge not all will share this assumption), none of these peer nations match the U.S. imprisonment rate and few come close to American levels of church membership, church-going, or public professions of faith. Perhaps not surprisingly, then, many American prisons offer a wide array of faith-based programming (even, or especially, prisons where secular education and rehabilitation programming is meager: for instance, in Louisiana’s Angola State Prison, you can earn a BA from a Baptist theological seminary, but no non-Christian college courses are offered). An evangelical group, Chuck Colson’s Prison Fellowship Ministries, is among the most prominent national organizations sending volunteers into prisons and advocating for criminal justice reform.

How does this convergence of American religiosity with American imprisonment fit with the First Amendment’s ban on state-established religion? In her book Prison Religion: Faith-Based Reform and the Constitution (Princeton UP, 2009), Buffalo law professor Winifred Sullivan uses a recent lawsuit as a case study for considering this question. From the book’s introduction: Read the rest of this entry »

Will Alabama Be Sued Over Prison Overcrowding?

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That’s the dire prediction made in this editorial from the Birmingham News:

Actually, it’s surprising someone hasn’t sued already. We’ve known since May the U.S. Supreme Court’s dim view of California’s overcrowded prisons. The high court ordered California to get rid of 30,000 of the prison system’s 140,000 inmates after inmates’ lawsuits contended the overcrowding violated their rights and kept them from getting needed medical care and other services.

Alabama’s prisons are even more jam-packed than California’s, with our state’s 30,970 inmates exceeding the prisons’ designed capacity by 190 percent, according to state data. California’s prisons were at 175 percent capacity at the time of the Supreme Court ruling. While Alabama’s prison conditions aren’t nearly as bad as California’s, Lauderdale Circuit Court Judge Mike Jones expressed the obvious concern.

“California’s prisons are not as overcrowded as Alabama’s are right now,” Jones told the TimesDaily of Florence in a story published Tuesday in The Birmingham News. “I’m afraid that all it’s going to take is for someone to take some of the California lawsuits and change the names of the defendants to Alabama officials instead of California officials and a group of federal judges is going to order that Alabama reduce a bunch of prisoners to reduce overcrowding.”

The California case referred to is, of course, Brown v. Plata, last year’s Supreme Court decision upholding a federal court order requiring the Golden State to reduce its prison population. At the time, for all its importance as a moral statement, I didn’t think Plata would have much practical effect for other states since no other state has prisons as overcrowded as California’s — no other state, that is, except for Alabama. So, it’s not surprising to me that officials there are worried.

I don’t think Alabama has as much to fear from federal judges as this editorial implies. Read the rest of this entry »

Written by sara

January 5, 2012 at 8:07 am

The Fiscal Crisis and Criminal Justice Reform

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Does fiscal crisis promote criminal justice reform? From reading newspapers and magazines, one would certainly think so. State efforts to cut costs by downsizing prisons have been one of the biggest criminal justice stories in recent years — with articles like this one (on California) and this one (on Oregon and… (the list could go on) now a recurring feature in both national and local newspapers. UC-Hastings law professor Hadar Aviram has coined a term for this convergence of fiscal woes with prison reform: “humonetarianism.” And one of the more intriguing political developments of the Obama era — the sudden reversal of many right-wing politicians from their Bush/Clinton/Bush era “tough on crime” stance — can be explained in part by concerns about the runaway costs to taxpayers of mass incarceration. Yet as Malcolm C. Young notes at The Crime Report, state budget woes can also be “double-edged swords” if they lead states to slash social programs that can help keep people out of prison.

In a (relatively) new paper, UW law professor Mary D. Fan provides some timely scholarly analysis of this seeming trend of “budget-cut criminal justice,” and offers suggestions for how states might move beyond expedient cost-cutting to lasting penal reform. In turn, here’s UC-Davis law professor Elizabeth Joh, writing at the legal blog Jotwell, discussing Fan’s findings:

Some of [the recent state-level prison reform] measures are decidedly modest; about half of the states have introduced “back-end” sentence reductions in their early release and parole programs so that individual prisoners receive small adjustments in their sentences in the interest of collective fiscal savings. Wisconsin has introduced “Taco Tuesdays” to save $2 million dollars a year by shaving off ten cents per inmate meal. Other measures, though, are decidedly more ambitious. Fan draws upon many examples. In 2008, Mississippi amended a law requiring prisoners to serve 85 percent of their sentences, so that parole boards could decide to release prisoners after serving 25 percent of their sentences. In 2009, New York amended its law to give counties the discretion to establish “local conditional release committees” to review applicants for early release. In 2010, the Colorado House of Representatives passed a bill with bipartisan support that lowers the penalties for several drug possession and use crimes.

Fan suggests public officials consciously embrace a fiscally responsible, evidence-based approach to penal policies that focuses on alternatives to automatically increasing sentences and warehousing prisoners. Unlike the rehabilitative ideal of the first half of the twentieth century, this rehabilitation pragmatism is less interested in the moral transformation of the prisoner and more concerned with cost-effective measures that nevertheless assure the public of its safety. Fan draws our attention to a moment in our history that may well be a turning point for prison policies that desperately need political will and legislative attention.

Downsizing the Prison Population, in California and Beyond

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As we begin 2012, it looks like California is on track to meet its court-ordered benchmarks for reducing the state prison population. KALW/The Informant notes:

The California Department of Corrections and Rehabilitation, readying its January 10 report to the federal court in the Northern District of California, announced it’s currently operating at 169.2 percent of its designed capacity. That number nearly hits the 167-percent figure the court demanded California meet by December 27, 2011.

In actual numbers, that means that the prison population has fallen by about 8,000 inmates since October–and should continue to drop at its current rate of about 900 a week.

The population decline is enabling CDCR to shut down “ugly beds” — the double- and even triple-bunk beds crammed into gymnasiums that became notorious through widely circulated photographs and video footage at the height of California’s overcrowding crisis. (Here are some photos of gyms and day rooms in the process of being converted back to recreational use.) Read the rest of this entry »

Written by sara

January 3, 2012 at 7:25 am

Should Prison Sentences Take into Account the “Unintentional Harms” Associated with Prison Life?

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Theories of punishment typically focus on the “letter” of the punishment — thus, a five-year prison sentence is a five-year prison sentence. But subjectively, five years in a minimum-security prison with weekend furloughs would be a very different experience than five years held in solitary confinement in an isolated supermax. Moreover, even within the same prison, each inmate will experience a five-year sentence differently — even if state law isn’t intentionally designed to treat inmates differently. Should sentencing decisions take into account factors beyond just the “intended” punishment? What about foreseeable “side effects” of punishment, such as reduced ability to see one’s family, or a particular inmate’s lack of access to needed drug treatment?

Readers may be interested in this new paper from Professor Adam Kolber at Brooklyn Law School, which considers these types of questions. Here’s an excerpt from the introduction:

Even though conditions vary substantially among prisons, we generally ignore these variations when assessing punishment severity. We fetishistically focus on the length of prison terms, even though sentence severity cannot just be a function of time. [...]

Moreover, even identical prison facilities have very different effects on prisoners. One inmate may become extremely distressed, while another thrives in the very same facility. Though we do not necessarily intend to cause such distress, bad experiences are clearly foreseen side effects of incarceration that vary considerably from inmate to inmate. Nevertheless, we generally treat inmates as receiving punishments of equal severity no matter how we expect them to experience prison life. 

Professor Kolber argues that “in order to impose just punishment, the state must measure the unintentional harms associated with punishment that it inflicts or expects to inflict and take those measurements into account at sentencing.” You can download the paper here, and read Professor Doug Berman’s take on it over at Sentencing Law & Policy.

Written by sara

November 13, 2011 at 12:10 pm

Alabama Inmate Sues Over Banned Book – Douglas Blackmon’s Slavery by Another Name

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Previously I noted Wall Street Journal reporter Douglas Blackmon’s book Slavery by Another Name, a history of the convict-lease system in Alabama. When an Alabama inmate, Mark Melvin, tried to read the book recently, officials at the Kilby state prison seized it, calling the book “incendiary.” Melvin is now suing in federal court with the help of the Equal Justice InitiativeFrom the New York Times:

Mr. Melvin never received the book. According to his lawsuit, he was told by an official at Kilby that the book was “too incendiary” and “too provocative,” and was ordered to have it sent back at his own expense.

He appealed, but in his lawsuit he says that prison officials upheld the decision, citing a regulation banning any mail that incites “violence based on race, religion, sex, creed, or nationality, or disobedience toward law enforcement officials or correctional staff.” (Mr. Melvin is white.)

So he sued.

A spokesman for the Alabama Department of Corrections said officials had not seen the suit on Monday and could not comment.

Mr. Stevenson, who is also the director of the Equal Justice Initiative in Montgomery, said he considered the lawsuit to be less about the rights of people in prison but primarily about the country’s refusal to own up to its racial history.

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