Prison overcrowding and offender releases

Screen shot 2013-08-11 at 15.17.24Gov. Jerry Brown has known for some time that California’s Prison Realignment was unlikely to bring overcrowding within the CDCR’s facilities in line with the SCOTUS ruling in Brown v. Plata. When Justice Kennedy’s majority opinion upheld the three-court decision requiring the CDCR to bring down overcrowding from 175% to 137.5%, the State correctly identified that relieving the pressure in the chamber could be achieved in many ways: it could build more prisons; it could invest in smart and effective probation measures; it could tinker with the sentencing rules; or it could mobilise county facilities to do jobs that were historically reserved for the state. It ultimately settled on the fourth option.

The state’s effort to transfer inmates from state facilities into county jails was a move of legal and political ingenuity. It enabled the Governor to assure citizens that he wasn’t releasing offenders, as Alito had forewarned in his dissent to Brown v. Plata, and it evaded having to raise vast amounts of money to build new prisons, thus protecting Brown’s re-election prospects for 2014.

But Realignment has been, at best, playing at the margins. To be sure, the margins in California’s prison system are huge, and the effects are already visible. Indeed, the recent reductions in the US prison population have been largely spurred on by California’s recent re-arrangements. The Economist even featured a graph this week that suggested the total US ‘prison occupancy rate’ (a measure of the number of inmates relative to the number of prison beds) was below 100%, meaning within capacity. Unfortunately, a cursory search through the source material at ICPS failed to provide sufficient information with which to verify the statistic for myself, or examine any trends in the data. If true, however, I’d hazard the guess that before California’s recent Realignment, the US occupancy rate would have been in excess of 100%.

Screen shot 2013-08-11 at 16.01.25The progress made in California thus far seems to have stalled. Brown claims to have exhausted all reasonable measures to move inmates between correctional facilities within the state, and any further measure would make Alito’s nightmare of thousands of feral offenders loose on the streets a reality. According to the L.A. Times, the CDCR has displaced inmates to county jails almost to the point of rupture, and it is considering relying on imperfect facilities such as low-security detention centres, fire-fighting camps, and facilities in other states. Nonetheless, last week the Supreme Court refused to acquiesce to Brown’s assurance that the CDCR had reduced overcrowding to levels sufficient to comply with Brown v. Plata.

An offender release thus seems inevitable given the political realities. However, the strategy underlying the implementation of Realignment attests to Brown’s reluctance to take politically bold steps – even if those steps require surprisingly little audacity when viewed against the scientific evidence. If a large-scale release happens, in all likelihood it will begin with the elderly and the infirm. This might bring the overcrowding problem in line with Brown v. Plata.

Or it might not. In drawing attention to how California is “stubbornly behind the curve” on criminal justice and incarceration, the New York Times ran an editorial yesterday advocating the establishment of a sentencing commission and a greater focus on connecting released inmates with extant re-entry and rehabilitation services. These are sensible measures irrespective of whether Brown succeeds in reducing overcrowding by the end of the year. But to get a sense of just how conservative Brown has been in trying to relieve overcrowding, it might be instructive to look abroad:

  • Italy currently has one of the worst records of prison overcrowding in Europe (the occupancy rate there is well over 140%). The Italian Senate ruled on Thursday that they will be cutting pre-trial detentions and will use alternative punishments for minor offences.
  • Venezuela will place 20,000 (40% of the total prison population) of its lowest risk, minor offending inmates on conditional release.
  • South Africa intends to dismiss the probation or parole sentence of 20,000 offenders, and grant pardons to a further 14,600 prisoners.

Releasing huge swaths of California’s prison population, as has been done in Venezuela, would be imprudent. But Brown’s reluctance to entertain the idea of offender releases, except as an absolute last resort, shows his inability to recognise just how modest Realignment has been.

Yet another hunger strike in California’s prison system

Today is the first day of yet another hunger strike for inmates in California’s Pelican Bay supermax correctional facility.

The inmates have stipulated that the hunger strike will continue indefinitely, until five modest demands are met.

Jonathan Simon writes:

Supermax-style prisons are an American abomination that are rejected by most other societies and considered a human rights violation in many. Total isolation of prisoners without meaningful activities, visitors, or meaningful human contact has historically been reserved for disciplinary punishments limited to weeks or months. In California’s SHU scores of prisoners have served more than twenty years of such conditions, and hundreds for more than ten.

To get a sense of the prospects for success of this hunger strike, it’s worth bearing in mind the recent political and legal context. In 2011, the Supreme Court determined that the CDCR was in violation of its inmates’ constitutional rights in its persistent denial of their basic mental health and medical care (read the court’s opinion in Brown v. Plata here). That case resulted in an injunction to reduce massive overcrowding throughout the system, and upheld the decision to place the healthcare system into Receivership. Brown v. Plata wasn’t directly intended to alleviate to the situation faced specifically by inmates in the SHU. But Jerry Brown’s response to the court injunction is directly relevant to this hunger strike.

The Governor’s office has repeatedly requested that the court vacate its Receivership. Each time, it cites its claim that the CDCR has resolved the problems that precipitated the mid-‘90s cases that culminated in Brown v. Plata. On each occasion, these requests have been rebuked; the most recent time (in mid-April), the court’s rejection of the Governor’s request was especially humiliating. It reminded the Governor of the Supreme Court’s admonition:

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. [Emphasis added]

Things aren’t improving, the Governor’s office thinks they are, and inmates at Pelican Bay are willing to starve themselves to death to prove their point.

If you would like to contact Governor Brown, here’s the link.