Does California Need a Truth Commission about Prison Overcrowding?

Berkeley law professor Jonathan Simon thinks so:

[W]e need a commission to investigate for the public record how the state found itself operating prisons that attract words like torture, cruel, inhuman, and degrading punishment. This is not Honduras where poverty, spiraling crime, and corruption are the order of the day, or Mexico, but we had prisons that belong in the same frame as recent news stories about the fire the killed hundreds in an overcrowded and chaotic Honduran prison (Guardian coverage here) and a murderous riot by one prison gang against another in Mexico to cover over an escape of elite gang members abetted by guards (coverage in the Guardian here).

Given the severity of the human rights problem in California’s prisons and its duration for more than two decades, retrospective documentation should lead to prospective preventive techniques. The commission could become a California Committee for the Prevention of Torture, or CAL CPT, modeled on the European CPT; a body of legal, medical, human rights, and criminological expert investigators with the authority to inspect any prison, mental hospital, or indeed any place of confinement, in order to warn state government of the potential for degrading conditions to form and how to prevent it.

The full post and more are at Simon’s always thought-provoking Governing through Crime blog.

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Historian Rebecca McLennan on “When Felons Were Human”

Thanks to a reader who sent me this article by Berkeley historian Rebecca McLennan, which traces the nineteenth-century legal and political changes that have enabled twentieth-century Americans to write prisoners out of the categories of “human” and “citizen.” McLennan writes:

Why do the courts, lawmakers, and majority opinion ignore the mounting evidence that a large-scale human rights crisis is underway in the United States? Why, on those occasions when news media document the most extreme prison abuses, do few of us conceptualize them as human rights abuses? Why, in a country where mass movements mobilized in both the nineteenth and the twentieth centuries to protest and change prison conditions, is there so little public concern over prison violence, overcrowding, the long term use of indefinite isolation, and the de jure and de facto erosion of prisoners’ civil rights?

In the course of my work as a historian of American law and society, I have pondered these questions frequently—enough to realize that, as formulated here, they’re in need of considerable refinement. But the history of America’s various modes of legal punishment leads me to suspect that our general failure to recognize certain prison abuses as human rights abuses is largely a consequence of the exceptional and degraded legal and moral status of convicted offenders. If we understand human rights as inalienable rights that flow from the mere fact of being human, it is hard to escape the conclusion that here in the United States prisoners and convicted offenders more generally do not count, at least in the eyes of the law and a vocal minority of opinion-shapers, as fully human. This drastic erosion of prisoners’ status transpired in the last twenty years of the 20th century and is the result of complex social, economic, and political forces. But, as I’ll suggest here, the courts and lawmakers of the nineteenth century helped lay the legal pathway to this dismal state of affairs by reviving and modernizing the early medieval legal fiction of the convict’s civiliter mortuus (civil death).

The article is well worth a read. McLennan is the author of a history of nineteenth-century punishment, The Crisis of Imprisonment, which I also highly recommend to anyone interested in the deep past of the American criminal justice system. A theme of that book is how widespread popular dissent led to the dismantling of systems of imprisonment at several moments in American history.

America’s Prison System as a System of “Permanent Exclusion”

Continuing what seems to be this week’s theme of LWOP here at the Prison Law Blog, here’s UCLA law professor Sharon Dolovich:

Of the 2.3 million people currently behind bars in the United States, only 41,000 – a mere 1.7% – are doing LWOP. Based on these numbers, one might well regard LWOP as the anomaly, and certainly not emblematic of the system as a whole. … I argue that it is LWOP that most effectively captures the central motivating aim of the contemporary American carceral system: the permanent exclusion from the shared social space of the people marked as prisoners. This exclusionist system has no real investment in successful reentry. … If this project is to be abandoned and its destructive effects reversed, the implicit assumption that individuals who have been subject to criminal punishment have thereby forfeited their status as fellow citizens and fellow human beings must be confronted and rejected.

That’s from the abstract to Dolovich’s new paper, “Creating the Permanent Prisoner,” available on SSRN. It’s from the compilation Life without Parole: America’s New Death Penalty?, forthcoming from NYU Press.

The Federal Judge’s Case for Criminal Justice Reform

Here’s Fourth Circuit judge Andre Davis, concurring reluctantly with a federal LWOP sentence for crack dealing (h/t Doug Berman):

The record shows that [defendant Tony] Gregg was a classic “utility player” in America’s forty-year “war on drugs”: user, seller, “snitch.” A tenth-grade drop-out (after repeating the second grade and the seventh grade) with four half-siblings, he began to use illegal narcotics in his early teens. For a time, he lived in an abusive family environment; later, he moved between his mother, grandmother, and father, sometimes in Virginia, sometimes in Ohio. As a young man, he attempted suicide more than once (although he described the episodes as mere attempts to “get high”). Throughout his 20s and early 30s, he was in and out of jails and prisons on a regular basis, sometimes for assaultive behavior. …

Understandably, perhaps, to many, Gregg is not a sympathetic figure; they will think: he got what he deserved. To many others, perhaps, matters are not so clear. Indeed, many would say that Tony Gregg seems to be one more of the drug war’s “expendables.” …

This case presents familiar facts seen in courts across the country: a defendant addicted to narcotics selling narcotics in order to support his habit. Unfortunately for Gregg and countless other poorly-educated, drug-dependant offenders, current drug prosecution and sentencing policy mandates that he spend the rest of his life in prison. He is not alone: the United States currently has the highest rate of incarceration in the world. …

The mass incarceration of drug offenders persists into the second decade of the twenty-first century despite the fact that research consistently demonstrates that the current approach to combating illegal drug use and drug trafficking is a failure. 

The opinion can be downloaded here (PDF) and is well worth reading in full.

“In Defense of Flogging”

Wow. Color me bleeding-heart, but I think this piece by Peter Moskos kills it:

My defense of flogging—whipping, caning, lashing, call it what you will—is meant to be provocative, but only because something extreme is needed to shatter the status quo. We are in denial about the brutality of the uniquely American invention of mass incarceration. In 1970, before the war on drugs and a plethora of get-tough laws increased sentence lengths and the number of nonviolent offenders in prison, 338,000 Americans were incarcerated. There was even hope that prisons would simply fade into the dustbin of history. That didn’t happen.

From 1970 to 1990, crime rose while we locked up a million more people. Since then we’ve locked up another million and crime has gone down. In truth there is very little correlation between incarceration and the crime rate. Is there something so special about that second million behind bars? Were they the only ones who were “real criminals”? Did we simply get it wrong with the first 1.3 million we locked up? If so, should we let them out?

America now has more prisoners, 2.3 million, than any other country in the world. Ever. Our rate of incarceration is roughly seven times that of Canada or any Western European country. Stalin, at the height of the Soviet gulag, had fewer prisoners than America does now (although admittedly the chances of living through American incarceration are quite a bit higher). We deem it necessary to incarcerate more of our people—in rate as well as absolute numbers—than the world’s most draconian authoritarian regimes. Think about that. Despite our “land of the free” motto, we have more prisoners than China, and they have a billion more people than we do.

If 2.3-million prisoners doesn’t sound like a lot, let me put this number in perspective. It’s more than the total number of American military personnel—Army, Navy, Air Force, Marines, Coast Guard, Reserves, and National Guard. Even the army of correctional officers needed to guard 2.3-million prisoners outnumbers the U.S. Marines. If we condensed our nationwide penal system into a single city, it would be the fourth-largest city in America, with the population of Baltimore, Boston, and San Francisco combined.

Read the piece in full, and send it to your friends and family.

L.A. Arts Group Dramatizes California Prison Crowding Litigation

The judges who wrote the 184-page court order in Coleman/Plata may have hoped they were writing history, but it turns out they were contributing to art, too! The Los Angeles Poverty Department, an arts and activism collective made up largely of homeless people, recently completed an innovative project combining public education, performance art, film, and theatre:

Project events started with a panel discussion about the effects of California’s parole reform on parolees. As we build the performance, State of Incarceration, we performed it in Skid Row, in parolee re-entry programs in the San Fernando Valley and LA and in 5 performance events at the BOX gallery that took place within a wall-to-wall prison bunk-bed installation. In the BOX’s basement we showed images charting the expansion of the prison population and new prison construction in California over the past 3 decades and the 21 year and counting history of the lawsuit challenging the quality of the health services in the state’s over-crowded prisons.

We invited our audience to read one page of the 184-page lawsuit. We’ll continue doing this until all pages are filmed. The resulting 5+ hour film will be part of the project.

The finished performance piece opened in late January at Highways Performance Space in Santa Monica. Unfortunately I didn’t find out about it in time to alert readers — it closed Feb. 5 — but here’s one reviewer’s summary of the experience:

In some shows, one may feel like one is in prison; in this one, that intent is deliberately visceral: Metal bunk beds line the walls and center of the theater and audience members are crammed into the room, often sharing bunk beds with the actors playing the inmates. The directors interspersed disturbing silences between a series of monologues and starkly delivered poems that illustrate the despair and hopelessness of prison life. In one such silence, convicts recline on their beds, and the guards patrol every inch of the room. During this sequence, the charged quiet belies the undercurrents of seething rage, and the piece approaches the claustrophobia, sorrow, and anger of being in prison.

Archbishop of Canterbury on “The Prisoner as Citizen”

Rowan Williams weighs in on Britain’s debate about inmate voting rights:

If we lose sight of the notion of the prisoner as citizen, any number of things follow from that, and indeed are following from that. … Thus issues around restoration, around responsibility, around developing concepts of empathy and mutuality are all part of what seems to me to be a reasonable working out of what it is to regard the prisoner as a citizen.

Of Taxpayers, Tea Partiers, and Lock-em-up Politics

Dana Walters comments on poll findings that prisons are California taxpayers’ least favorite government expense (in other words, I’m not the only one!):

When PPIC asked voters which major areas should be hit with cuts, just 24% named K-12 education, 35% said higher education, 37% suggested health and welfare programs and 70% singled out prisons. The results were similar when voters were asked what they were willing to underwrite with higher taxes.

Interestingly, the disdain for prison spending was virtually identical among all subcategories of voters — Democrats and Republicans, liberal San Franciscans and conservative Central Valley residents, rich, poor and middle-class.

From one perspective, it’s heartening that voters are willing to countenance a smaller prison system. And it fits with a broader trend in American life: the apparent decline of tough-on-crime politics. Yesterday, I heard Mark Earley give a talk at Stanford. He spoke about having gleefully participated in the tough-on-crime wave of legislation in the 1980s and ’90s as a Virginia state legislator, not really viewing prisoners “as human beings.” Only later did he have a Road-to-Damascus moment, or series of moments, through his work with Prison Fellowship, which brings Christian ministries into prisons around the country.

One of Earley’s points was that we may have reached a tipping point on mass incarceration: tough-on-crime rhetoric simply doesn’t work so well when you get to a point where 1 in 100 adults is in prison.

Criminal Defense and Prison Conditions

Criminal defense attorneys are often asked “How can you defend those people?” Here’s one attorney’s answer (from 1980):

Those guilty of serious crimes merit the wrath of our society. But almost no one deserves the hell holes that we call jails and prisons. There is almost no case I would not defend if that meant keeping a human being, as condemnable as he or she may be, from suffering the total, brutal inhumanity of our jails and prisons…

— John B. Mitchell, “The Ethics of the Criminal Defense Attorney–New Answers to Old Questions,” 32 Stanford Law Review 293, 320-21 (1980). Reprinted in Rhode & Luban, Legal Ethics, 5th ed. (Foundation Press), 305-6. Link here for those with HeinOnline access.

Prison Higher Education Programs: An Unfunded Unmandate

A letter in today’s New York Times, from Vivian Nixon of the College and Community Fellowship, relates the Georgia prison strike to a broader problem — the dearth of funding for prison higher education programs:

Georgia inmates contend that access to educational opportunities beyond the G.E.D. will better prepare them for re-entry and decrease crime and recidivism. They’re not the only ones who know this to be true.

Reports released by the United States Education Department, the Justice Department and state correction departments all recognize the myriad benefits of educating prisoners. Since 1994, incarcerated students have been barred from receiving Pell grants despite the fact that prisoners received less than 1 percent of all Pell grant dollars awarded and that postsecondary education has proved to be the most successful and cost-effective way to reduce recidivism and increase public safety.

It’s worth keeping in mind exactly what happened when President Clinton signed the Violent Crime Control and Law Enforcement Act, which authorized almost $10 billion of federal grants for state prison construction while in the same stroke cutting off the $200 million of annual Pell grants that had been going to prisoners because God forbid we allocate 3/5 of 1 percent of the annual outlays of a relatively modest federal program to prisons! In 1994, there were over 350 higher education programs in prisons around the country, with about 40,000 inmates enrolled. (Note that there were also only about a million prisoners, compared with about 2 million now.) Within a year of the act’s passage, as well as copycat acts at the state level, there were fewer than a dozen. Congress and President Clinton collaborated to all but eliminate higher education programs in American prisons. Few federal statutes have so thoroughly and immediately achieved their aim.

It’s also worth keeping in mind the inanity of the rhetoric that got this measure passed. Senator Pell himself supported the use of his namesake grants by prisoners. But Kay Bailey Hutchison claimed that “Pell Grants are a great scam: rob a store, go to jail, and get your degree.” Let’s take a moment to think this through. Even if it were true, in 1994, that a person contemplating enrolling in college would find committing a robbery an easier way to do that than simply filling out an application to college, wouldn’t that have been a pretty glaring indicator that something had gone terribly awry, not with prison policy, but with the education system? But of course, Hutchison wasn’t really trading in facts and logic but in the general demonization of “criminals” that drove so much policymaking in the early 1990s.

The irony, of course, or maybe this was just the point all along, is that Hutchison was right: Hundreds of thousands of would-be college students have been denied access to higher education because of money spent on prisoners, but not because prisoners have been sucking up all the college grants. In many states prisons now receive far more government funding than colleges and universities do — even though all that government funding mostly goes to keeping prisoners idle. As California struggles to keep not just its once-legendary state university system but also the state itself afloat, it’s worth noting, as UCLA professor Chan Noriega recently calculated, that “California could send every last prisoner to a UC campus, covering all expenses, and still save nearly $2.3 billion per year.”