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Prison Breakdown (cont’d)

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Many studies have shown that huge numbers of offenders are convicted of nonviolent, often drug-related third strikes, and that these cases are clogging up both the courts and the prisons. In 2004, the ACLU found that 65 percent of three-strikers had been convicted of nonviolent third offenses, and that 10 times as many Californians have “struck out” for drug possession than for second-degree murder. Close to half of those who have struck out are African American. Yet over several years, California’s elected officials have been unable to agree on how to reform the law.

“There’s no strategy behind the incarceration,” says attorney Sara Norman of the Bay Area-based prisoner-rights group, the Prison Law Office. Her colleague Don Specter goes further. The state, he says, is all-too-quick to incarcerate, but is “unwilling to pay for the humane treatment” of those it locks up for years and even decades at a stretch.

While more and more dollars are being devoted to corrections, the amount of money available per inmate for programming (such as education, drug treatment, vocational training, mental health care and so on) has declined as a percentage of the total cost of incarceration. In June, the state senate subcommittee in charge of overseeing the Department of Corrections and Rehabilitation’s budget reported that a mere 5 percent of the $43,000 California spends on each inmate each year currently goes toward rehabilitation programs.

To understand what has gone wrong, one has to go back more than 30 years and examine a generation’s worth of flawed criminal justice policy-making at both the state and federal levels. It’s what freelance journalist and one-time editor of the Boulder Weekly Joel Dyer once pungently termed a “perpetual prisoner machine.”


The growth in California’s carceral infrastructure is in keeping with changes that kicked in nationally during the ’70s–a few years before California abandoned its liberal criminal justice policies–and that continue to the present day, resulting in a five-fold increase in the number of prisoners nationally. On any given day, about 2.2 million Americans are either in jail or in prison, with approximately two-thirds of these inmates in state and federal prisons. The remaining one-third is in county jails. This has created a $100 billion a year incarceration industry.

The War on Drugs explains much of the explosion, sending huge numbers of men and women, a disproportionate number of them poor blacks and Latinos, into state and federal prisons. The sentences handed out to drug offenders often exceed those served by rapists and other violent offenders.

Meanwhile, deinstitutionalization of the mentally ill, under the banner of “reform,” has left hundreds of thousands of people without adequate access to medications, counseling and effective support networks. Many of them have subsequently spiraled into the criminal justice system. In California, about one in five inmates is seriously mentally ill. The state is struggling to provide comprehensive treatment to these inmates without bankrupting the entire correctional system.

“By the time somebody gets to prison, we’re already a thousand steps behind,” says state Sen. Darrell Steinberg, a Democrat, who has pushed several major reforms in recent years designed to build up community mental health networks and also strengthen mental health care for the state’s tens of thousands of mentally ill prisoners. “The point is, how are we going to keep people out of these prisons? You don’t make up for years of neglect in one or two or three years.”

Movement away from indeterminate sentencing–a process originally supported by both the left and right–has generally resulted in more people serving longer sentences. So, too, did curtailment of parole and the passage of “truth in sentencing” laws that made prisoners serve almost all of their sentences before being eligible to go up before the parole board–both reforms popular with the newly powerful “victims rights” movement in the ’90s.

Yet California’s prison system is peculiarly dysfunctional. A half century ago, under Gov. Edmund “Pat” Brown, the state was known for having one of the most progressive prison systems in the country, one that emphasized rehabilitation, drug treatment, education and alternatives to incarceration. Some of its prisons even boasted world-class libraries behind their imposing walls. That trend held through Ronald Reagan’s years in Sacramento (1966-1974), and stayed good as recently as the gubernatorial tenure of Pat Brown’s son, Jerry, in the late ’70s. But today, after the disastrously “tough” consecutive gubernatorial tenures of George Deukmejian, Pete Wilson and Gray Davis from 1983 to 2003, the system is a byword for failure.

In January, the Little Hoover Commission, a major Sacramento-based think tank, issued a report that declared the system to be “in a tailspin that threatens public safety and raises the risk of fiscal disaster.” Almost all of the system’s correctional institutions are operating way over capacity, with some, like Solano, at near double capacity for about a decade now, according to the report.

Because Solano is a medium security institution, housing level II and level III inmates, prison administrators have the option of simply cramming more and more bodies into open spaces, a “luxury” not available to wardens in charge of higher security facilities. For example, at high security sites, such as the supermaxes of Pelican Bay, located in Crescent City, in the far north of the state, and the Central Valley’s Corcoran prison, prisoners must be locked up in individual cells and allowed out for, at most, one hour per day.

California’s solution? Build still more prison beds–and hope these beds end up solving the existing overcrowding problem, rather than simply becoming an excuse to incarcerate evermore offenders.

At the heart of AB 900, the bill Schwarzenegger signed into law this year to tackle the overcrowding crisis, is a $7.3 billion bond act that will be used to build housing for more than 50,000 new beds. In a departure from recent spending priorities, many thousands of these beds will be specifically reserved for rehabilitation units, drug treatment centers and mental health sites within correctional settings. The legislation also seeks emergency short-term responses to address overcrowding, including allowing the state to ship 8,000 prisoners to privately run facilities in Arizona and Mississippi.

Some critics have lambasted the legislation as paving the way for the biggest single prison-building spree in U.S. history, but its supporters argue it represents a new dawn for the troubled system. Bill Sessa, a spokesman for the California Department of Corrections and Rehabilitation, says that after decades of inertia, the department finally has a plan, “and we should be given time to make the plan work.” Defending the combination of building plans and rehabilitation ambitions, he explains that “before you can have rehabilitation programs, you’ve got to have places for them.”

The truth lies somewhere in between these two arguments. Given the number of people being sentenced to prison in California, more beds are certainly needed. The question is: Might it not have been a wiser strategy, albeit a more politically risky one, to create a Sentencing Commission? In the wake of the post-2001 fiscal crises experienced at the state level, several states have used such commissions to reexamine many of the mandatory sentencing laws put in place since the ’70s, in order to lower the numbers coming into prison and to shrink the prisoner population. AB 900 sidesteps this more in-depth, systemic, approach to criminal justice reform, instead focusing on delivering more services within prison settings.

And here’s the rub: Even assuming AB 900 works in the long run, it’s increasingly likely that the courts won’t be willing to wait that long. In June, two federal judges for the eastern district of California, Thelton Henderson and Lawrence Karlton, held hearings in a packed, wood-paneled, 16th floor courtroom in Sacramento’s Federal Building. They discussed how prison overcrowding was making it impossible to deliver constitutionally acceptable levels of medical and mental health care to prisoners. Over the past several years, the judges had presided over two separate cases, one on the provision of mental health services inside prisons and another looking at the general quality of health care services behind bars. With plaintiffs in both cases now arguing that chronic overcrowding is making it impossible for court-ordered improvements to be implemented, Henderson and Karlton decided to pool their resources and hold one set of hearings on the issue.

“There are no rehabilitative programs,” Karlton noted testily. “Part of the problem is this is a fantasy. They barely have the ability to house people. Where are you going to find the space to meaningfully rehabilitate people?”

Don Specter, from the Prison Law Office, argued the situation is now so dire that only a court-imposed population cap on the prison system can nudge the state toward effective changes. He calls overcrowding “a crisis of constitutional dimensions that is dangerous for prisoners, unsafe for staff and a threat to the public.” Specter and his colleagues urged the two judges to form a three-judge panel that would hear arguments and decide whether to force the state to rollback its prison population. To the amazement of many observers, they received an amicus brief from the prison workers’ trade union, CCPOA.

The prison system, the CCPOA now argues, is in near-terminal crisis, with wardens unable to fill vacancies for several thousand guards’ jobs, despite the high salaries offered correctional officers. The association asserts that the Department of Corrections and Rehabilitation is massively failing in its newly rediscovered mission to rehabilitate incarcerated offenders. It is, according to the union, a tinderbox ready to explode, with union members at risk of being attacked by inmates because of poor prison conditions.

While some of the CCPOA rhetoric is gamesmanship–the union responding to political intransigence on the prison issue and to its stunning loss of ground in contract negotiations in the years since Gray Davis lost office–not all its criticisms are just for strategic effect.

“AB 900 was a farce, a scam perpetuated against California’s people,” says union spokesperson Ryan Sherman, over lunch at Chops, one of Sacramento’s favorite hangouts for lobbyists. “It was designed to hoodwink the federal government that they were finally taking action to end the crisis. It’s not real. It’s not reform. It’s prison construction.”

According to Sherman, corrections spending in California has doubled in the past four years and corrections itself hasn’t gotten better. “We shouldn’t be spending so much locking up more and more people. Other things impact our members, not just in prison but in the community. Better schools. Better roads. A lot of things are important,” he says.

In the end, Henderson and Karlton agreed to create a three-judge panel that will decide whether to impose a population cap on the state’s prison system. It will start hearing arguments sometime this fall. And the panel may begin imposing a population cap as early as 2008.

Absent rapid and wholesale release of inmates–which even proponents accept is hardly an ideal solution to California’s woes–ongoing overcrowding means that many prisoners will spend years in settings like Solano. And, in a throwback to pre-modern prison conditions, all sorts of criminals are mixed together in these latter-day communal dungeons. “You might have a guy in here doing 16 months for a DUI and a guy doing 10 years for robbery,” Lt. Wamble acknowledges.

Not surprisingly, in addition to being petri dishes of criminality, the gym dorms in Solano and elsewhere are breeding grounds for disease. In the past few years, chicken pox epidemics have broken out, one gym had to be locked down to contain a spreading tuberculosis contagion, gastroenteritis has run rampant, inmates regularly report devastating flu outbreaks and staph infection is commonplace.

“I got sick, like a flu, when I first got in here,” recalls 22-year-old Ramon Wilson, who is serving five years on a drug conviction. “I couldn’t get out of bed I was so weak. Nauseated. Couldn’t eat.” He continues, “I’ve seen spider bites. Mice. Rats running around. Mice will get inside the lockers and eat the food. There’s people on hot meds–psych meds–who can flip out any second. The C.O.s [corrections officers], some give us respect, others play games like we’re little children.”

The correctional system’s ability to provide constitutionally mandated levels of health care has been successfully challenged in a series of lawsuits. And the mental health system is in such shambles that it has been removed from state control and is now being run by a federal special master.


California’s story is in many ways akin to what took place in almost every state in America since the ’80s. A nationwide lunge to the right, politically and culturally, has resulted in a dismantling of rehabilitation programs, a vast growth in the penal infrastructure and an increased emphasis on locking more people up for ever-more-petty offenses; putting in place ever-harsher conditions, such as secure housing units and supermax prisons; and an unprecedented transferring of the mentally ill, the drug addicted and the undereducated poor into the criminal justice system.

But while these trends are national in scope, California’s size and its tough-on-crime mentality have produced a prison system that is unique both in its scale and, increasingly, in its sheer dysfunction and utter failure to rehabilitate.

“California basically started warehousing people in the early ’80s and that’s when things started going to hell,” Dale Richter of the prison-reform group Friends Committee on Legislation in California argues. “California’s correctional system hasn’t had a defined mission for quite some years.”

Today, California stands on the threshold of a new era. Unless the state’s residents send strong signals to their elected officials that enough’s enough when it comes to prison-building, it will only be a matter of time before more state dollars go into locking up its citizens than providing its young people with a public university education.

In many ways, California remains a place of dreams, the pot of gold at the end of the American rainbow. But its criminal justice policies have, at the very least, put a dent in the optimism. California’s gold rush to mass incarceration reflects priorities gone awry to a spectacular degree. It has taken three decades to get this far off track. Let’s hope it doesn’t take that long to put the state’s criminal justice system back on a fairer, saner footing.

Sasha Abramsky is the author, most recently, of American Furies: Crime, Punishment, and Vengeance in the Age of Mass Imprisonment.

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