Federal Judge Will Lift Receivership Over California Prisons

After six years in federal receivership, the California prison system is ready to be returned to state management, says federal judge Thelton Henderson. The San Francisco Chronicle explains:

When U.S. District Judge Thelton Henderson of San Francisco appointed a receiver in February 2006 to oversee inmates’ medical treatment, he said the lack of adequate care was killing an average of one prisoner a week, and state officials had shown themselves incapable of complying with constitutional standards, including the ban on cruel and unusual punishment.

On Tuesday, Henderson said the latest report from receiver Clark Kelso showed “significant progress,” to the point that many of the goals have been accomplished. “The end of the receivership,” the judge said, “appears to be in sight.”

It’s not over yet, though. Henderson told lawyers for state prison officials and the inmates to meet with Kelso and try to agree on when the state will be ready to run its own system, under continued monitoring — by Kelso or someone else — to prevent backsliding. Their report is due by April 30.

In the meantime, the prison population continues to shrink, a development closely linked to two decades of health care litigation.

Donald Spector, who heads the Prison Law Office, which has been litigating the California prison cases for 20+ years, told the Los Angeles Times that he’s worried the state may backslide after the receivership is lifted, given the state’s ongoing fiscal crisis. California Healthline has a helpful backgrounder on the issue.

 

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Realignment in California: The Basics, Plus How Counties Are Preparing

On October 1, California will start diverting low-level felony offenders and parole violators to county jail, rather than state prison, when a new law, known as “realignment,” goes into effect. The law was proposed by Gov. Jerry Brown as a way to bring the California prison system into compliance with the Supreme Court’s order to alleviate overcrowding, and was enacted by the Legislature in March as AB 109. I thought I’d run through a few basics of how the law will work and round up some recent news coverage from around the state. If you’re looking for a more comprehensive resource, the ACLU of Northern California has produced a helpful guide (PDF) to the law and how counties can plan for the changes.

The Mechanics

• How will AB 109 change California sentencing practices? As of October 1, the law transfers responsibility for punishing non-serious, non-violent, non-sex felony offenses to the county level, where misdemeanors are already handled. So rather than being sent to state prison, these low-level offenders will now be punished with a term in county jail or whatever alternative sanction the county comes up with. (For those familiar with the California Penal Code, generally we’re talking about felonies punishable by the “16 months/2 years/3 years” triad.) 

California Lifers, Though Eligible for Parole, Are More Likely to Die in Prison

That’s the conclusion that KALW reporter Nancy Mullane found when she ran the numbers. Kudos to Mullane for her dogged pursuit of this data, employing California’s Public Records Act. I thought I’d provide some additional context, mainly in the form of rounding up some links.

Caveat before I go on: It’s essential to keep in mind, when reading about criminal justice issues, that every state has different laws, policies, and terminology. This post is mainly about California, and in particular, about California prisoners serving life terms with the possibility of parole — which is a subset of the California prison population, mainly convicted of murder. For non-homicide crimes, California offenders are typically sentenced to determinate terms of a fixed number of years. They don’t have to go before the parole board because they’re automatically released, or “paroled,” when their term ends. The terminology is confusing, because the word “parole” is used to describe the release of both subsets of prisoners.

The fact is this: Because of the tough-on-crime turn of the 1980s and ’90s, many prisoners who were initially sentenced to life with the possibility of parole are now effectively serving LWOP or “death-in-prison” terms. It simply became a political near-impossibility to rubber-stamp the release of a convicted murderer. This bait-and-switch has happened in states across the country, though with different legal and administrative underpinnings in each state. In Virginia, parole-eligible inmates claim that the parole board summarily denies parole in every case. In Michigan, it was changes to the composition of the parole board that effectively made parole harder to earn.

In California, the change came in 1988. That year, Golden State voters transferred to the governor the final say on all parole decisions for murderers serving life terms.

The California Budget Crisis and Prisoners’ Religious Rights

The Jewish Daily Forward has an interesting article on how California’s budget crisis is affecting the Kosher Diet Program offered to Jewish prisoners:

Though state prisons continue to receive their kosher food allotments, said [Rabbi Lon] Moskowitz, the Jewish representative on the CDCR’s Chaplains Coordinating Committee, several of the facilities no longer have masgichim, or kosher food inspectors, to ensure that the allotments are, indeed, kosher.

Moskowitz, who is the Jewish chaplain at the California Men’s Colony, also told the Forward that

funds were lacking for essential religious artifacts, and for things such as “grape juice, matzo and candles for Shabbat.” Inmates, he said, “have less access to chapel services and true religious opportunities for prayer, study, penitential counseling, behavior modification programs and rehabilitation.” The situation for chaplains has become increasingly frustrating, he charged: “There is a steady move from being professional clerics to clerical workers spending most of the day doing administrative [work] and paperwork.”

California’s Kosher Diet Program was instituted in 2003 after a Jewish inmate brought a successful lawsuit under the First Amendment and RLUIPA, the Religious Land Use and Institutionalized Persons Act, the 2000 federal law that governs prisoners’ religious rights. The Forward article suggests that too many cuts to the Kosher Diet Program, or similar programs for inmates of other faiths, could invite further litigation from prisoners.

More Notable Plata News and Commentary

This roundup will be sort of haphazard, but I just wanted to flag a few things that have come across the transom worth your attention:

• Here’s an informative article by Jeanine Sharrock at New America Media that puts into perspective Gov. Jerry Brown’s “realignment” proposal, which would comply with Plata by shifting responsibility for low-level offenders down to the county level. About a third of California prisoners come from Los Angeles County, where the county jails have their own overcrowding problems, not to mention their own ongoing unconstitutional conditions litigation.
• Linda Greenhouse of the New York Times has now weighed in. She characterizes the Kennedy opinion as a blast from the past to the 1970s era of sweeping structural reform injunctions. (As, of course, does the Scalia dissent, though Scalia comes to bury, not to praise.) Overall Greenhouse seems to approve, given the uniquely dire state of affairs in California’s prisons: “if the court can’t solve such problems, it still has the power to illuminate them and to summon our better selves. The court uses that power rarely these days, but in this one decision, it found a nearly forgotten voice from long ago.”
• And here’s a detailed analysis of the opinion from Stuart Taylor, who has some sympathy for both the majority opinion and the Alito dissent but describes the Scalia dissent as “overheated.”

EDITED TO ADD: I meant to include one more:

• Dan Morain of the Sacramento Bee gives some additional context to the Justice Kennedy opinion. J. Clark Kelso, the court-appointed federal receiver in charge of CDCR, was a Kennedy clerk back in Kennedy’s Ninth Circuit days.

450 California Inmates Wrongly Released? Not Really.

Last week the California newspapers were filled with headlines stating that CDCR had mistakenly released 450 inmates due to a computer glitch. Well, there was a computer glitch. But these prisoners would have been released anyway because they were serving determinate sentences — and under a determinate sentence, once your time’s served, legally you have to be released. The computer glitch caused the released prisoners to be mistakenly assigned to the wrong level of post-release parole supervision, not to be mistakenly released. That’s still a problem, of course, but the distinction is important. The CDCR Star has a round-up of corrections/clarifications here.

The confusion among headline writers is understandable since the California system uses the word “parole” to refer both to discretionary release for indeterminately sentenced offenders and to post-release supervision for determinately sentenced offenders. I’ve suggested before that I think resolving this terminological ambiguity could help clarify the public discussion on prison and parole policy in the Golden State.

“What’s Ahead for California’s Dysfunctional Prisons?”

The Crime Report has an interview with Matthew Cate, Secretary of the California Department of Corrections & Rehabilitation — worth reading in full for California wonks. Here’s an excerpt:

TCR: What are your two or three major accomplishments?

Cate: Reducing prison overcrowding while seeing crime rates in California continue to decline, is accomplishment number one. Number two is parole reform, where as I’ve mentioned, we’ve developed and used a risk assessment tool to identify and focus our resources on our most dangerous inmates, rather than just cycling our low risk inmates through our prisons over and over again for technical violations. This concept of basing our decisions on the science of who’s risky and who’s not is a major step forward in California.

TCR: What has been your biggest frustration?

Cate: The fact that corrections reform takes so long. It took two-and-a-half years to put in place the basic rudiments of parole reform. It was a highly politicized issue, and there were civil service and bureaucratic rules that had to be dealt with. The red tape is so unbelievable in California that it takes a long time to make anything happen even when everyone agrees it should be done.

Goro Toshima’s Documentary Film on Reentry Challenges after Prison

Filmmaker Goro Toshima has posted a 15-minute preview of his documentary, A Hard Straight, which follows its subjects for two years after getting out of California prisons. More information on the film is available at the PBS Independent Lens site, including a filmmaker Q&A:

… I think the problem has less to do with reentry programs and more to do with incarceration and the lack of rehabilitation that prisoners receive while locked up. I think the film shows that all three people in the film had problems/issues before going into prison. And during the time they were incarcerated, none of these issues were dealt with. The most effective change, I think, would be in focusing on trying to help people from the time they are locked up. Trying to help them once they are out, instead of while they are in, seems a little too late to try to help these people.

(h/t: Volokh Conspiracy)

Federal Receiver Calls for Separation of California’s Prison System from Health Care System

J. Clark Kelso, the federal receiver appointed to oversee California’s prison health care system, has an editorial in today’s Sacramento Bee, excerpted below:

My primary job as a federally appointed receiver is to raise the level of care to constitutional levels and turn back to the state a functioning prison medical care system that the state will be capable of maintaining. …

First, we need to formally remove the operational part of prison health care from the management of the California Department of Corrections and Rehabilitation by establishing an organizationally separate, board-governed health care authority. This can be accomplished without spending more money or creating more bureaucracy. In fact, having a separate authority will make it easier to implement our savings program and to get our fair share of federal dollars in support of health care.

The corrections department’s mission is not health care. It is maintaining custody and control. The reason we have made so much progress on medical care in the past three years is because we have operated independently of CDCR and that independence let us focus on our health care mission. If responsibility for prison health care returns to the department of corrections after the conclusion of the receivership, the most likely result will be backsliding as the health care mission once again becomes subordinate to custody and control. This is not intended as a criticism of the department of corrections and its executive team or staff. It simply reflects the reality of organizational behavior and culture.

Kelso was appointed in 2008 in the course of the ongoing Plata v. Schwarzenegger class action lawsuit, in which prisoners alleged that they were being subjected to cruel and unusual punishment, in violation of the Eighth Amendment, in the form of deliberate official indifference to their serious medical needs. (In 2005, a federal judge found that a California inmate was dying needlessly every 6-7 days.)

California does not dispute the need to improve its prison health care system: the lawsuit reached a settlement in 2002. But litigation has continued over whether California is taking the appropriate remedial measures to fulfill the terms of that settlement. It was in the course of this litigation that a federal receiver was appointed, after the court found that the state had proven unable to devise and implement solutions on its own. Most recently, a panel of three federal judges ordered that the California’s efforts so far have failed to resolve the underlying issue of overcrowding, and that it must take steps to reduce its prison population by about 46,000 inmates. California will challenge that ruling this fall at the Supreme Court.

Web Resources: News21 Behind Bars

The Bay Citizen, “a nonprofit, nonpartisan news organization,” has partnered with UC Berkeley’s News21 initiative to publish “Behind Bars,” a series of online articles on California’s prison system. So far, articles have focused on the process of integrating cell blocks, the revolving door of parole, and how the state tracks sex offenders. Read all the articles at the series homepage here; learn more about the project here.