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.

The way we talk about prisons

Mike Konczal’s piece from the WaPo linking the economy with declines in the prison population caught my eye, too. Rather than echoing Keith’s point about the manifest falsity – or methodological futility, for that matter – of establishing the association, I’ll highlight a different aspect of the story.

In the five years since the economy tanked, there’s been a recognisable shift in the way people talk about justice policy. The Urban Institute’s John Roman put together a nifty graphic that illustrates how the policy recommendations of various interest groups have aligned in light of recent fiscal instability.

Screen shot 2013-07-29 at 00.37.36

Continue reading “The way we talk about prisons”

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.

Saving the University of California

Ask the voters to require that the UC system get at least half what the prisons get. It would pass in a landslide.

The University of California system is one of the great miracles of public management. Berkeley, UCLA and UC San Diego are all among the top 20 universities in the world; UCSF is one of the great medical centers; if Santa Barbara or Davis or Irvine were a flagship state university, it would be way better than most of its peers; and Santa Cruz, Riverside, and Merced are all more-than-respectable institutions. Aside from Berkeley, all of this greatness is the product of the past 60 years.

And we’re blowing it. The next round of budget cuts and tuition increases – the one that will follow the likely defeat of Proposition 30 – will be intolerable. And even if Prop. 30 passes, that provides a torniquet, not a transfusion. As Al Carnesale predicted, our ambition will slowly sink from being among the greatest universities in the world to being among the best public universities in the country. Financially, we will move – as other systems have – toward a publicly-owned set of self-supporting (in effect, private) universities, with much less access for the poor.

This is a matter of more than parochial interst. A great research university takes decades to build, but only years to destroy. The capacity represented by the UC system is a national asset, and one not easily replaced. Great research universities that also have graduating classes of 30% first-generation college-goers are simply unheard of. (U.Va., where I’m teaching this term, is a fabulous place, with terrific students. And 91% of those students have college-graduate parents. Social mobility? What’s that?)

I think it’s time for the University to stop relying on California’s feckless politicians and go straight to the voters. They don’t like spending money. They don’t like taxes, except on other people. But they do like the idea of a great university system. And they strongly dislike spending money on prisons, even as they demand toughness on crime. (I hope you weren’t looking for consistency in voter opinions.)

Here’s a proposition that, I am convinced, would pass, if we could get it on the ballot. And we could collect enough signatures right on campus to put it on the ballot:

The State of California shall not in any year spend more on its prison system than on its universities.

“Universities” includes the Cal State system. Or you could phrase it:

Funds appropriated for the University of California shall not, in any year, be less than half the funds appropriated for the California Department of Corrections and Rehabilitation.

This year CDCR will spend about $9B, and the appropriation for the UC system is $2.2B, scheduled to be cut back by about $500M after Prop. 30 goes down. So the proposition would more or less double state funding, which would allow some recovery of quality and a reversal of the huge tuition increases of the past few years.

I’ve been pushing some version of this for about three years now, and my colleages get all goo-goo on me and refuse, on principle, to discuss the idea. After all, they say, government-by-proposition has ruined California.

Well, so it has. But if the institution is worth defending – which I fervently believe – then this is one of the times when we must rise above principle, and just do what’s right.

Who should pay for whose college, and how?

Years and years ago, David Mundel used to provoke my interest in public policy as an object of analysis (rather than an occasion to opine) by suggesting out-of-the-box things like: the way to deal with affirmative action and discrimination in college admissions is to require colleges to admit by lottery and have done with it.  This appears flatly nuts until you realize that under such a scheme, applicants would have a strong interest in choosing schools whose academic demands matched their abilities, because there’s no point in getting into a place you will just flunk out of as a freshman, and colleges would have an interest in providing the information with which applicants could choose intelligently, because there’s no point in admitting someone who can’t cut it. I’m still not ready to completely sign on to this idea, but it has a lot going for it. It certainly beats the uninformed grasping for prestige that college application season has turned into.

David, IIRC, also favored charging full costs in tuition with an extensive loan program, because all college students are pretty rich on a lifetime income basis no matter what income their families have, and not being able to afford college is simply a capital market failure that should be fixed directly. Tuition subsidy at the University of California, on this model, is a Hood Robin transfer from everyone to the upper third of the income distribution.

This question is not just dinner-table conversation stuff: a lot of my students and colleagues are off to Sacramento Monday to demand that the state fund education, including higher education, sufficiently not only to put an end to the petty and wasteful “economies” we are being subjected to but to reverse the hockey-stick increase in tuition at public colleges and universities.  That California is abusing its young people by trashing their educations in K-12 and underproviding it at the college level is my view in spades; I’m torn between rage and despair.  This spring I clicker-polled my class and found that the parents of 17% of them had no degrees above high school, and my heart leapt; these are the students I especially get up in the morning and go to work for. Continue reading “Who should pay for whose college, and how?”

Berkeley protests

Yesterday an OWS-affiliated (whatever that actually means) crowd tried to occupy what functions as a quad at Berkeley, with tents in which to stay a while.  Campus police and Alameda County Sheriff’s deputies arrived in armor looking like Darth Vaders, cleared the tents away by force, pulled down signs, and brutalized a bunch of students and faculty.  Getting jabbed with the end of a police baton held in two hands is not a nudge, as the AP inexcusably described it, and neither is getting grabbed by the hair and thrown to the ground for convenient placement of handcuffs.   Brutalized is the word, though the police have lately been trained to injure people in ways that don’t show in TV interviews (no bleeding scalps or bloody noses! no broken long bones: cracked ribs hurt plenty, and we don’t want pictures of victims in hospital beds or casts).  There were 39 arrests, including a professor and 22 students.  Some of the videos I watched last night and this morning have been taken down by YouTube, but there are several here that will make you sick.

Our chancellor, who is here responsible for an episode that is totally inept as both leadership and public relations, has had the remarkable good fortune of being able to hide behind his opposite number at Penn State all week (and do our students ever look better than theirs).  He circulated a letter to everyone yesterday that may reach a new high in official cowardice and mendacity (but note exception below). It presents a stupefyingly lame justification for the “no encampments” order he issued, and blandly identifies standing unarmed in a row with arms linked – you remember, the way MLK and the freedom riders did – as “not non-violent”.  Then he adds the truly incredible “we regret all injuries, to protestors and police, that resulted from this effort.”  Injuries to police? Excuse me: AFAIK there were no injuries to police: the police, as Chili Palmer says, were the ones inflicting the pain, period. And finally, we get the inevitable, scurrilous passive voice diffusion of responsibility into thin air, “the police were forced to use their batons to enforce the policy.”

I have never been completely comfortable with the California campus protests of the last couple of years.

Continue reading “Berkeley protests”

Two New Options for Goodwin Liu

To the surprise of exactly no one, Senate Republicans will filibuster Goodwin Liu’s nomination to the 9th Circuit Court of Appeals.  As I argued yesterday, this really shouldn’t matter if the administration’s eventual goal is to appoint Liu to the United States Supreme Court: many of the greatest justices had no or virtually no judicial experience before coming onto the high bench.  But if the administration really believe that Liu has to have some judicial experience beforehand, there are a couple of other options:

1)  Give Liu a recess appointment to the Ninth Circuit.  This will last until the end of the current Congress.  With more than a year and a half of experience on the federal bench, Liu will have more judicial training than John Marshall Harlan, Clarence Thomas, or Elana Kagan.  Temporary Article III judgeships are going to be more and more common as long as Senate Republicans have decided to make the Senate dysfunctional.  (It’s bad for the judiciary as an institution, but the GOP doesn’t care about institutions.).

2)  Prevail upon California Governor Jerry Brown to appoint Liu to the open seat on the California Supreme Court.  It says something not-so-great about the legal profession and legal academia that state supreme courts are not regarded as having the same or greater prestige than intermediate federal appellate courts.  For the most part, state supreme courts have control over their dockets, unlike the federal circuit courts, and they are the last word in their own jurisdictions.  State supreme court justices elevated to the US Supremes have a pretty good track record — Souter, Brennan, and Holmes immediately come to mind.  Why would Brown do this?  Why not?  Liu would be a highly effective judge.  And besides, given California’s ongoing fiscal crisis, it would be really good to have friends in Washington high places who owe you a favor.

Reality surfacing in California

Jerry Brown has issued a budget that engages a $25b deficit.  Note the word engages; not “papers over” or “hides with wishful thinking” or “lies about”; engages. There’s plenty of work not done yet, but this is huge: for the first time in recent memory, our elected chief executive is telling us the truth. Not solving the problem (he needs a vote on tax increases), not solving the problem the way I would like, but it’s a new world in Sacramento.  Brown is saying, and pretty clearly, “this is the government you seem to be willing to pay for.  You’ve been getting a lot of stuff for ‘free’, by borrowing and cooking the books, but we’re out of tricks and that table is no longer taking bets. If you want some of the stuff that’s going away, you will have to agree to give up some things you’ve been buying on your own.”

The deficit is about $700  for every person in California, where per capita income is about $45K. In other words, if the state economy transferred 1.6% of its consumption to the public sector from the private sector, the deficit would be covered with current levels of public service.  (Another 1.6% and we would have the state Californians used to be proud of – not “the state government”, the state and all the things in it that don’t work without government.)  Brown proposes about half spending cuts, including some really savage ones, like $3000 for every student in the University of California system, park closings, and breathtaking slashes in things like Medicaid, home health care, and welfare.  The other half is tax increases, in the form of extensions of temporary taxes enacted two years ago. These are pretty regressive.  It’s not unfair to describe Brown’s proposals as balancing the budget on the backs of the poor, and the tender mercy with which he’s treating the prison system and its shameless union is notable. He’s also holding K-12 education to the level of harm it’s already endured, which is the shame of the state (for now; if he doesn’t get the tax increases, watch out).

He also proposes to  transfer a hatful of responsibilities to local government, including one intriguing proposal that county government take over more of the cost of wildfire fighting on grounds that it’s county and local land use decisions, allowing development far into fire zones, that have made firefighting so expensive in recent years. This complicates the discussion, because whatever level of government provides them, they have to be paid for with some kind of foregone private consumption. But perhaps California would be better off with more variation in local government positioning on the high-tax,high-service and low-tax,low-service scale.

The Republicans are reacting according to their vacuous script, refusing to countenance any tax increases and prating in the usual way about shared sacrifice and waste in government.   The California Republican Party long ago lost its tether to responsibility, reality or even humanity, and no-one takes their policy discourse to mean much more than “please, please, don’t primary me in my safe district of rich people who think they don’t need any government.” But they do have their 1/3 plus blocking minority for tax increases.

I’m not sure how this will unfold, though it will probably take a couple of years for the cuts to make themselves visible and consequential.  If the tax extensions fail at the ballot, things will get uglier faster, which might help move things along.  But what direction they move is not certain; the kind of service Keith reports from the DMV might wake people up, but a lot of the pain will be visited on people who are so desperate they can’t really put a political oar in. It also might just aggravate  inarticulate and unfocused government-hating in angry, poorly led, and frightened middle class, and we could wind up in a stable pessimal condition, the Alabama of the west. On the one hand, Brown’s budget’s clarity and honesty is a necessary step toward fixing a broken society; on the other hand, the subsequent steps are not assured.  It’s scary times.

California’s Budget Crisis: Make the Voters Decide

California’s voters need to take responsibility for the state’s budget, and stop blaming the politicians. Here’s the way to make them do that.

For reasons that mystify me, Jerry Brown wanted to be Governor of California again, and as of a few hours ago, he has gotten his wish.  Now comes the proverbial hard part: a budget deficit that by some measures reaches $28 billion, nearly a quarter of total state spending.  Brown has quietly mooted the idea of making massive, draconian cuts to the budget while asking voters to approve the extension of earlier, temporary tax increases that would reduce the gap to “only” $20 billion or so.  No smoke and mirrors, he insists.

But if he really wants to avoid smoke and mirrors, he should take the whole issue directly to the voters and make them decide.  Not let them decide: make them decide.  State budgets around the country are all in a shambles, but California’s is particularly bad, and for that, the voters have no one to blame but themselves, consistently cutting their own taxes, hamstringing the Legislature’s ability to do anything, both fiscally and procedurally.

What to do?  I propose having both the Democrats and the Republicans place their budget proposals on the ballot, and the voters must choose one of them.  Each proposal must close the budget gap within a particular fiscal band, and the integrity of the estimates can be checked by the state’s Chief Legislative Analyst, who usually does nonpartisan fiscal analyses for budget measures. 

The incentives would be something akin to an arbitration: each side wants the decision to come as close as possible to its preferences, but since the arbitrator-electorate can only choose one, the more extreme the solution is, the more likely the arbitrator will be to choosing the other side’s proposal.

I believe that the Democrats will win this one: Republicans will either have to propose raising taxes, infuriating their base, or propose cuts so dramatic that the voters will be turned off. 

It’s critical, in my view, to present the voters with a choice, one of which they must accept.  As the Los Angeles Times poll a few weeks ago showed, the electorate simply does not believe the numbers — only a quarter believe that balancing the state budget without tax increases will require any cuts in services.  So if the Governor puts a budget proposal on the ballot, and warns what will happen if it’s rejected, the voters will just not believe it, and vote “no.”

I do admit that I am unsure at this stage whether such a framework fits in under California’s initiative and referendum law.  My understanding is that the Legislature needs a 2/3 majority to put a referendum on the ballot, and the Republicans will vote no on doing this, for reason I just discussed.  But there are other ways to get this done than through the standard referendum process.   I’ll research and update.

In the meantime, though, I think that the overall point is clear.  Since the passage of Proposition 13 in 1978, California voters have decided that they will maintain tight control over the state’s fiscal situation. But they have never actually had to make the decisions.  They have had, as Rudyard Kipling (or was it Stanley Baldwin?) once observed, “Power without responsibility — the prerogative of the harlot throughout the ages.”  It’s time to stop it.