Beyond the Binary in California Prisons

UPDATE (10/14/15 9:30 a.m.):  Well, that was fast.  California backed off the plan today.  We’re back to “nothing but incapacitation for violent offenders”.  At least we had a 24-hour window of conversation….

UPDATE 2 (10/15/15 11:09 a.m.).  This just gets weirder and weirder.  Turns out the policy changed years ago: California officials admit 40% of inmate firefighters are violent offenders.

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California’s inmate fire crews are a crucial part of the state’s firefighting infrastructure, an infrastructure that has been taxed this year and which will likely be taxed in future years as climate change makes weather extremes (such as our current drought) the rule rather than the exception.  A recent news story highlights the dilemma the state is in: with the realignment of low-level offenders away from state prison, the state has, essentially, run out of low-hanging fruit.  There aren’t enough nonviolent offenders to serve as inmate firefighters, and the state badly needs them, so the state is considering putting offenders convicted of violent offenses into inmate firefighting crews.

It’s surprising to see the state consider this move, but it blows my mind to see that Harriet Salarno of Crime Victims United was asked for her opinion on it and didn’t oppose it.  (For more on her organization and how its history is entwined with the California Correctional Peace Officers’ Association, you can either read Josh Page’s book or this article.)  Salarno says the state has no choice.

“This is very, very dangerous, but when you have a forest fire, what can you do?” she said Monday. “You need manpower to fight the fires, so we’re now putting dangerous criminals out there.”

In addition to pointing out the newsworthiness of her statement, I want to explore how this unlikeliest of sources might teach us some lessons about how to change the political calculus about the hardest cases–violent offenders.

To start with, California doesn’t have to use inmates convicted of violent offenses to man its inmate crews–it has the alternative of spending much more on non-incarcerated wildfire crews.  It’s interesting to see someone like Salarno not reflexively oppose the move.  In the past, her organization has been very conservative on prison issues, championing three strikes and opposing the proposition to end the death penalty.  The stance she’s taking here suggests that she’s considering the possibility of constraints on government expenditures–or at least the value of keeping cheap prison labor.  Perhaps we’ve reached the point where the public safety card has been trumped by the fiscal conservatism card.  Mass incarceration has its (credit) limits.

What’s more interesting to me, though, is that we’re even talking about this possibility at all.  For years, anyone convicted of a violent offense has been politically untouchable: re-entry programs often focus exclusively on non-violent offenders (as if we didn’t want to rehabilitate those convicted of violent offenses) and much of the discourse around mass incarceration has to do with either drug offenders or non-violent offenders.  This goes straight to the hard case of violent offenders, not sympathetic drug users, and suggests that there’s something to do with them other than mere incapacitation.  (Yes, it’s a tough and dangerous job, so that cuts one way, but fire camps are also much better than mainline prisons.  The go-to source for all things fire camp is Phil Goodman.)

One last point: the article that prompted this post avoided the phrase “violent offenders”; instead, it talked about inmates with violent backgrounds.  I think that’s a small but important point.  The use of the term “violent offender” implies something immutable about those offenders.  Violence becomes a permanent attribute of the person, rather than something you once did.  But the offense is only part of the story.  The offender is the other part.  The former never changes; the latter can.  And it should be our goal to design systems that create opportunities for that change–or at least admit of them.

Figuring out how to minimize the very real risks posed by offenders convicted of violence is, of course, a tall order, and a painful and fraught conversation.  But unwinding the carceral state is going to be like that–painful and complicated–just like the loss of realigned inmate firefighters has proven to be painful and complicated.  And even if the conversation is painful, it’s a conversation we need to start.  The state of California has created an opening to discuss that possibility, and Harriet Salarno is willing to go on the record as not opposing it.  Are others?

Author: W. David Ball

W. David Ball is an Associate Professor at Santa Clara School of Law. He writes and teaches primarily in the fields of criminal law and criminal procedure, with a special focus on sentencing and corrections. He also serves as the Co-Chair of the Corrections Committee of the American Bar Association.

5 thoughts on “Beyond the Binary in California Prisons”

  1. I am all for looking at new approaches, but I'm pretty surprised that violent offenders/_______ would be considered for fire crews. Fighting fire seems like a pretty darned difficult job — and one in which teamwork would seem necessary. Do I think all v.o.'s are incapable of it? No… but I wouldn't expect them to be particularly good at it either. I'll check out this fire camp expert link though.

    I'm pretty conservative about violent crime, though I am a liberal too. I believe we should have a justice system that is fair and as gentle as possible. Still, to me, reducing the prison population vis-a-vis VOs, just to change the numbers, is not even a goal. It is just not on the radar. Talk to me about fairness though – that's different.

  2. There's violence, and then there's violence (see, for example, the thin line in professional sports). But that would take a lot of judgement on the part of prison officials.

    I was wondering, perhaps wrongly, whether part of the initial thought here was about expiation and cannon fodder.

  3. Interesting update. So if they've been doing it anyway, then there ought to be data on whether or not it is very risky, and which people are riskiest, and so forth.

    I liked the Daily Journal piece, I am all for data analysis. I hope though that somewhere along the line, there is qualitative data too — what did the person do and *why* did they do it? Distinctions can be made, and probably? should be. Mind you, we should all use our words … but there are people doing things they shouldn't, too. Thought processes, impulse control, one's code of ethics… pretty fascinating stuff. And I too think people can change… *if* they want to.

    1. I think that if there had been any serious incidents involving firefighting inmates, that would have been reported by now. This program has prison inmates doing work that would otherwise be done by members of the firefighter's union, so I doubt the union supports the program. The union's president said, “I’m very concerned this has been going on without our knowledge and inmates with violent backgrounds have been coming in without our notice,” and called for an investigation. I'm sure that if an inmate assaulted someone during a firefighting operation, the union would have gotten involved, and would now be citing the incident to justify it's concern.

      That suggests that there have been no incidents, which would mean that the risk of the program is either zero, or too small to measure without a larger sample size.

  4. Thanks so much for the feedback. I think it's certainly possible that there's a "cannon fodder" component to this, but that would be hard to square with the fact that, for years, NV offenders have been participating in fire crews.

    What I think is more interesting, though, is the embedded assumption that what's past is always present. (Comes naturally to me, as a Southerner, but still…) I think someone having been convicted of an act of violence is certainly part of the story, but I don't think it's the end of the story. As one of the prison officials says in the article (paraphrasing here) "If you've lived in prison without incident, you are a nonviolent offender." Given the environment and the opportunities for violence, a clean disciplinary record (assuming they are accurate, etc.) certainly is something to consider when it comes to present risk.

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