The Prison King
Written by CHRISTINE PELISEK
During "Z" 's rule, his favorite white inmates got drugs, weapons and
the
freedom to roam.
Shayne Allyn Ziska didn't want a jury trial. He thought the ways of his
former world, as a $66,000-a-year guard at Chino's state prison, too
complex
for 12 men and women to understand. He preferred leaving it to a man in
a
black robe to decide whether all the bad things inmates and a couple of
guards said about him were true.
For six days last month, his accusers took the stand in federal court,
telling Judge Terry Hatter Jr. how the 44-year-old Ziska befriended
members
of a white-supremacist prison-based gang called the Nazi Low Riders
(a.k.a.
"the Ride"). They said he preached "white power" ideology and referred
to
black inmates as "rugs," "porch monkeys" and "niggers."
When Ziska was on duty at the California Institution for Men at Chino,
the
usual rules of prison life did not apply. He often allowed his favorite
white inmates out of their cells to plot crimes and to retaliate
against
other inmates for violating the gangster's code of conduct. To control
his
empire, "Z," as his friends called him, housed his favorite white
inmates
together and occasionally smuggled heroin and methamphetamine inside
letters
for them. He would allow white inmates to make wine in their cells, and
often looked the other way when a beating went down. He was the "go-to"
guy
for certain "buddies" in need of razors.
For four years, from 1996 to 2000, Ziska's renegade regime ruled the
prison
walls, including the 200-inmate Madrone Hall, where he was one of three
guards per shift. He insinuated himself into many parts of inmate life.
He
was a leader and teacher, instructing inmates in self-defense, with
tips on
how to take away a weapon from a guard. He was a philosopher, preaching
about Friedrich Nietzsche and Adolf Hitler's Mein Kampf.
The 5-foot-10, wiry-yet-muscular Ziska, his blond hair cut short,
denied all
of it when he took the stand for an hour or so on the final day of his
trial
in downtown Los Angeles. "I am there to protect them," said Ziska. "I
don't
share anything in common with the NLR."
After a lunch break, Judge Hatter issued his verdict: guilty on one
count of
violent crime in aid of racketeering, one count of deprivation of civil
rights under the color of law, and one count of conspiracy. Hatter, in
scathing remarks about the Corrections Department's poor record in
addressing its problems, thanked the U.S. Attorney's Office for
"shining the
light on one of the darkest areas of the state."
The verdict closed the door on a five-year investigation that began in
1999,
when the Ontario Police Department looked into a spate of violent crime
and
an upsurge in meth labs attributed to the Ride. The police finally
called in
the FBI, and by the end of the probe, 29 members or associates of the
gang
had been indicted. Most of those named in the 2002 indictment had spent
time
in Chino's prison, and two of the nine inmates who agreed to testify
against
Ziska had been indicted by the feds. Ziska, the only guard implicated,
was
placed on administrative leave in 2000, ending his hopes of being
elected
president of the Chino prison union. He was indicted in 2004.
One of the more puzzling aspects of the case is why so few guards came
forward to say they noticed anything odd on the days Ziska worked.
Guards
who testified on Ziska's behalf denied that there was any "code of
silence"
that forbade them from saying anything negative about one of the
members of
their powerful prison-guards union, for which Ziska was a shop steward.
"The
Shayne Ziska I am familiar with is professional, and he is not someone
I
think of as a white supremacist," said Marty Aroian, president of the
union's Chino chapter. "He was a very effective and a dedicated shop
steward. He kept the tenets of our organization very well."
Ziska, a former construction worker, started his career as a
correctional
officer in 1984, at the age of 22, at the 6,300-inmate Chino prison.
His
first assignment was on the minimum-security yard, and he graduated to
patrolling some of Chino's most dangerous units, including
administrative
segregation, where the most violent inmates are kept. Ziska was also a
member of the prison SWAT team for three years.
"He was rough around the edges," said corrections officer Denise Mori
Harrison, who worked with Ziska in 1999 and testified on his behalf.
"He
either liked you or he didn't."
Race often made it into his conversations. When Harrison, who is white,
married an African-American man, Ziska told her that he was against
mixed
marriages because he felt sorry for the children. On another occasion,
he
asked his new Latino partner if he spoke English. "He was a real
asshole,"
the guard said. "I said, 'Who the hell is this guy?' I have been here
for 12
years. He said, 'Do you want to be my partner? Are you going to work?'
He
worked my ass off." He eventually changed his mind and grew to admire
Ziska.
"We were like brothers there."
Ziska lived with his wife, Joan, and three sons in nearby Fontana. He
was an
avid surfer and a black belt in tae kwon do. He also taught martial
arts to
inner-city youth for more than 20 years.
But Ziska had a darker side. Ziska's former brother-in-law, Vince
Cobbold, a
former felon who spent 18 months in jail for selling marijuana and
methamphetamine, testified that Ziska was a meth user who once looked
into
joining the Ku Klux Klan.
"He wanted to know if I wanted an application," he said. Ziska's son
Ryan
described his father as a racist who would have disowned him "if I
brought
home a nigger."
The 20-year-old college student recalled how his father would regularly
engage his older brother in white-power talk and that he once bragged
about
beating up a black inmate. His favorite coffee mug had a picture of a
swastika. During the trial, Ziska's attorney, Ira Salzman, accused Ryan
of
taking his mother's side after the family's breakup in 2005.
Ziska extolled the virtues of white power, according to federal
prosecutors.
He shaved his head bald, sported a skull tattoo with lightning bolts
blazing
out of its mouth, symbolizing "SS," and was intolerant of other races.
He
fit in well with the strict rules and regulations of the Nazi Low
Riders
white prison gang.
The Nazi Low Riders emerged as a white-supremacist prison gang in the
late
1970s and early 1980s. The Ride took over control of the California
prison
system's main yards when the Aryan Brotherhood, the leading white
prison
gang, was systematically disciplined by the Corrections Department and
placed in administrative segregation. The Ride agreed to continue the
AB's
illegal activities and, in 1999, the Ride became a validated prison
gang,
along with the Mexican Mafia (Eme) and the Black Guerrilla Family.
Membership in the white-race group is by invitation only. New members
must
commit a violent act and be sponsored by a "senior." In addition, the
gang
follows strict rules of conduct. Members cannot work with law
enforcement,
associate with known sex offenders or engage in "race mixing." Race
mixing
includes dating out of your race, and eating with or touching food
prepared
by another race. While in prison, Ride members must participate in
mandatory
exercise and physical-training programs and take part in "roll call" -
where
they identify themselves as members. Members must also donate 10 to 30
percent of all items received through the mail or purchased at the
prison
store to the shot caller, or senior member, who passes some of it along
to
members in secure housing units. A member can be stabbed or killed if
he
rapes or disrespects a fellow member, or claims to be a member before
obtaining membership status.
The gang holds power through intimidation and violence. Stabbing is
considered a badge of honor.
If a white inmate is in violation of gang rules, it is the white
inmates who
take care of it. Snitches and child molesters are called "trash."
Ziska helped clean up the "trash," or "lames."
The indictment accused Ride members of ordering hits, committing
violent
acts, intimidating witnesses, extortion, drug trafficking and numerous
weapons violations. The two who agreed to testify against Ziska, in
return
for lighter sentences for themselves, were Brian "Skully" Roberg and
Robert
"Bobbo" Wilson, both of whom became Ziska's pals inside prison walls.
In 2001, Roberg pleaded guilty and received a plea agreement in return
for
testifying against Ziska. He also was given $2,000 by the FBI for his
troubles.
"It was something that I was thinking about for some time," he said. "I
started talking to them [the FBI] initially because of my request. I
wanted
to change what was getting me busted in my lifestyle."
It would be Ziska's undoing. It would also open the floodgates for many
more
inmates to come forward.
Thirty-four-year-old Brian Roberg was
sent to
prison at the age of 18. He did time for possession of drugs for sale,
armed
robbery and possession of a firearm. While in prison, he became
affiliated
with the Mexican Mafia and the Aryan Brotherhood. In 1998, he was doing
time
at Chino. It was at Chino that Roberg, also known as "Mother Fucking
Skully," "MFS" and "Rock Solid," became a full-fledged member of the
Ride.
It was a steppingstone to becoming a member of the Aryan Brotherhood.
"I wanted to be recognized by the Aryan Brotherhood for work I put in,"
testified Roberg. "The NLR are assets to the Aryan Brotherhood for
getting
work done and spreading the message. It was about Aryan Brotherhood
politics. It was about being aggressive with attitude."
Roberg eventually became the shot caller for the Ride at Chino prison,
announcing mandatory workouts in the yard and conducting "church
meetings"
to discuss gang business. Over a span of two years, he admitted to
calling
hits on five inmates, including the stabbing of a white inmate who lied
about having a Ride sponsor, and a gang member who overheard a
conversation
about an assault on an inmate and tipped off the intended target. As
the
shot caller, he held ultimate authority over the white inmates. No one
could
be stabbed or beaten without his permission.
It was at Chino's Sycamore Hall that Roberg first befriended Ziska. The
inmate and the correctional officer soon became friends. Roberg said he
grew
to respect Ziska and even called off a hit on a Skinhead named Junior
at
Ziska's request.
"Ziska asked us not to stab Junior," he said. "He said Junior was his
boy.
Ziska asked me a favor because of the rapport we had. It was the least
I
could do for him. He did me favors."
On another occasion, Ziska again asked Roberg to refrain from stabbing
an
inmate, because he feared that a knife attack would bring heat down on
his
unit. "We just beat him down," said Roberg. "No one would be
disciplined. It
would be different if there was a stabbing."
Roberg took Ziska's words to heart one more time, in 1999, after a
Skinhead
named Nathan "Chance" Johnson allegedly raped his cellmate. Johnson
denied
the rape, but, as white prison policy dictated, he had to pass along
his
"paperwork," or incident report, to his unit's shot caller for review.
After
taking a look at the report, Roberg decided that there wasn't enough
evidence to call a hit on Johnson for violating one of the Ride's
cardinal
rules - the one against rape.
Roberg also told how Ziska had come to his cell and influenced his
decision.
"He gave me the incident report," he testified in court. "Ziska said I
needed to look at it. I said I didn't believe the paperwork. I saw that
something had happened. I figured that the dude just beat him up. Ziska
was
making such an issue about the incident. He was giving all the
indications
that the dude needed to be hit. To have a rapist socializing with NLR -
that's bad stuff as far as politics go. It was clear in my mind I was
missing something in letting Johnson into the program. Ziska's access
to
information was far greater than mine. It was a clear indication that I
should look further into it."
On July 24, 2000, Ziska got his way. Johnson was stabbed in the eye on
the
yard by Ride member Joseph "Sulky" Diamond.
Roberg wasn't the only inmate with special privileges who came forward
to
testify against Ziska. "Bobbo" Wilson, a "Wood," or Ride associate,
became
Ziska's tier-tender, or helper, at Sycamore Hall in the mid-'90s.
(Wilson
also worked out a plea agreement with federal prosecutors.) One of
their
first orders of business together was the assault of an ex-Marine who
was
housed in their unit.
"We came to find out that he was there ?for breaking his baby's arms,"
said
Wilson. ?"We were given the paperwork from Ziska. Whites aren't
supposed to
hurt kids. This individual needed to be got because what he did was
wrong."
As a favor to Ziska, Wilson agreed to throw the inmate a beating, and
Ziska
obliged by opening the ex-Marine's cell. On another occasion, Ziska
opened a
cell for Wilson when he found out that an inmate was in for raping a
mentally challenged girl. "You don't rape, period," he said. "We are
running
the prison for whites, and we want to know who is coming in."
Another inmate who received special favors was a violent Skinhead named
James "Spinner" Abbott, who was in and out of custody for 15 years.
Abbott,
a so-called independent, was a good match for Ziska. The two would talk
about German philosopher Friedrich Nietzsche and Adolf Hitler's Mein
Kampf.
"The white race is genetically superior," he said from the witness
stand.
"Smarter. We invented almost everything. Ziska told me that he started
out
as a traditional Skin, but it seemed to me that he got more infatuated
with
the [Nazi Low Riders]. He liked the structure of them. He seemed to
gravitate towards that."
Ziska regularly taught Abbott martial arts, how to thwart a knife or
pepper-spray attack, and gave him Plexiglas so he could make a weapon.
"I
was in that wicked way," he said. "Ziska wanted us to be strapped in in
case
of a riot."
Abbott also planned the beatings of an inmate who was "wagging his
weenie"
at two corrections officers, as well as a child molester, at the behest
of
Ziska. "When my homeboy was socking him up, Ziska walked down toward
the
guard shack, and when the old man screamed, he looked away like it was
coming from another direction. It was funny. He didn't go check to see
if he
was okay," said Abbott, about the second beating.
But not everyone was buying the inmates' stories.
"They are all cons," said defense attorney Salzman. "They have major
sentences. The government is arguing that the motive is racial. He
might be
a hard person, but he is not a racist. Someone would have picked this
up.
Other guards wouldn't have tolerated this. Why would he do it? Why
would he
sacrifice his career for this purpose?"
Chino corrections officer Richard Allan Palacios Sr. worked the 8 a.m.
to 4
p.m. shift with Ziska in the late 1990s. The two officers got on
reasonably
well. Palacios didn't ask too many questions when he saw 15 to 30 white
inmates out of their cells at one time, and Ziska provided no answers.
Instead, Palacios would grab another officer, and the two would corral
the
inmates back into their cells. It was a regular ritual. It was usually
followed by Ziska's letting them back out. "We would confront inmates,
and
they said they got permission from Ziska," he said. "They would be
screaming
out his name."
Palacios eventually began to worry about his safety and brought his
concerns
to Ziska. "He told me I was being too hard on the white inmates," he
said.
"He said to me, Do you know what it would be like to have battery acid
on my
vehicle? He told me to back off because they did favors for him when he
wasn't there."
Palacios' fears reached a high point after he saw Ziska show Ride
member
Michael "Snake" Bridge Polaroids of a fully clothed Palacios with a
"baton
in my rear end" as part of a prison hazing ritual.
"It undermined my authority and safety," he said. Chino corrections
officer
Robert Walter Spejcher, who was assigned to the shift just after
Ziska's,
complained that there were days when he started work and found cell
doors
unlocked - a violation of prison policy - and white inmates wandering
the
tiers.
"It presented a security risk," he said. "They could jump out and
attack us.
Guards were scared they would get jumped."
Spejcher said that he would find Nazi paraphernalia and an unusually
large
amount of weapons in white inmates' cells.
"There were more acts of violence on the third watch due to inner-dorm
visiting after Ziska's watch," he said. "I don't need a job that is
unsafe
to work because of the number of incidents going on."
Palacios eventually brought his concerns to his superiors, who told him
to
document Ziska's bad behavior. Soon afterward, Palacios filed a written
complaint to investigative services. After a six-month internal-affairs
investigation, prison authorities found no evidence of wrongdoing and
closed
the file. For coming forward, Palacios said, he was shunned by his
co-workers and given the silent treatment. He eventually transferred to
another unit at Chino.
"I didn't agree with the findings," he said. "In my report was a list
of
dates and times and officers present. I had to go with what the
department
said."
"The reason why it wasn't sustained was because other officers wouldn't
back
up his claim," said federal prosecutor Adam Kamenstein.
It wouldn't have been the first time that an officer was shunned for
violating what U.S. District Judge Thelton Henderson, in a Northern
California case, described as a "code of silence" among officers. In
2004,
Henderson ordered an investigation by special master John Hagar into
the
state's labor contract, asking whether it gave the prison-guards union
too
much control over prison management and whether the contract hindered
the
state's ability to conduct fair and accurate investigations of guard
misconduct. What they found was a culture fostering a code of silence
that
was rampant in the department.
A prime example occurred in 2002, when two former Pelican Bay guards
were
sent to prison for soliciting inmates to attack child molesters, sex
offenders and other inmates they disliked, and for attacking inmates
themselves at the maximum-security facility in Crescent City. The trial
of
Sergeant Michael Powers and Officer Jose Garcia raised concerns that
some
guards attempted to protect their convicted colleagues, sparking the
federal
investigation that prompted Henderson to consider appointing a receiver
to
run the department.
"Rather than CDC [California Department of Corrections] staff
correcting the
prisoners, some correctional officers end up acquiring a prisoner's
mentality: They form gangs, align with gangs and spread the code of
silence," Hagar wrote. "The code of silence is taught to new recruits
because of longstanding CDC culture, turning good officers bad."
At Ziska's trial, federal prosecutors accused numerous Chino correc
tions
officers of adhering to that very same code of silence. Besides
Palacios and
Spejcher, all of the correctional officers who testified said that they
hadn't witnessed any wrongdoing on the part of Ziska, and most denied
that a
code of silence existed among correctional officers. "I don't believe
the
code of silence exists," said corrections officer Nathaneal Huley, who
worked with Ziska in 1999. "If he was passing weapons, it would be a
problem
for me. Why would I want to keep that hushed? One of those weapons
could end
up in me."
Prosecutors say Ziska's only motivation was to help the white-power
cause.
Defense attorney Joel Levine says the case was largely a fabrication of
inmates trying to help themselves. "There is no evidence that he
received
money or remuneration for these actions. It is a no-brainer to inform
on a
corrections officer and get benefits for themselves."
Late in the day on February 14, after an emotional afternoon of
testimony by
Ziska's son Ryan, Judge Hatter convicted Ziska of all but two counts.
He
criticized the Department of Corrections for failing to supervise Ziska
and
ordered Ziska to return to court on May 8, when he could be sentenced
to as
many as 50 years in federal prison.
"I am clearly of the mind that the California Department of Corrections
ought to be indicted as well, if they could be," Hatter said. "It's
amazing,
frankly, that the offenses which are charged here are not more rampant
throughout the entire system, and I am sure that there are offenses
that are
as grave as some of these and worse and hopefully will be brought to
the
attention of the public before long and will be addressed properly."
Thursday, March 23, 2006
The Unforgiven's Message
For twenty years now, I have lived every day within the system, The
Criminal Justice System.
For twenty years I have watched, been caught up in and have fought
the corruption that is rampant throughout the entire system; from
the police on the street; through the courts (with over zealous
prosecutors who violate the law in the name of justice and the
judges who allow them to do it) and within the Department of
Corrections (whose policies are supposed to serve for the benefit of
the public but instead, serve only to place society in a greater
peril by creating men far angrier and dangerous then you can imagine
through brutality, depredation and official misconduct; then
releasing us into society with absolutely no chance to reintegrate
and lead a positive productive life.)
For twenty years I have wished for a voice, a voice of reason,
intelligent, just and compassionate. A voice of sanity in a dark and
brutal world, that is but a flicker on the edge of the awareness of
far too few in this, our God-fearing society. Now it seems I'm
finding that voice, my own . . .
Who am I? I am simply "The Unforgiven". I have no degrees or fancy
titles (except that of a convicted felon, for which I don't deem too
fancy.) I have instead, a wealth of experience; experience that can
never be matched by words in a textbook; and desire, the burning
desire to see positive change brought to a system gone hopelessly
awry.
I ask that those who read this to bear with me. I have never
attempted to write anything on as grand a scale as this will be (due
to the complexities of the nearly infinite issues that lie at the
core of this multibillion dollar beast I pray can be exposed and
tamed.) In fact, I've written next to nothing other then letters
(and so few of those that my girlfriend (Doing Time) keeps
threatening to make me single again!) I am a talker, not a writer
and the transition have frustrated me to no end.
Before I begin this little odyssey of mine, let me state for the
record my position on "the system":
Crime cannot be tolerated or condoned by anyone. Thus, "the system"
is an absolute necessity. Laws are a must to protect the innocent of
any society from the many types of predators out for personal gains
and/or pleasure. To enforce these laws we must have a police force
vested with any and all authority necessary to ensure said
enforcement. Once arrested, an accused individual must be given a
fair and just opportunity to prove any innocence and this process
must be overseen by lawyers, prosecutors and judges who uphold the
tenant engraved upon the face of this country's Supreme Court: Equal
Justice for All. Finally, there must be a prison system in which
those found guilty of crimes against society can be held separate
from the people they have harmed and the rest of society to whom
they pose a threat due to their criminal nature.
It may seem to you that I have stated the obvious since this is a
system you see as already existing. Now though, I want you to try to
see beyond the obvious into the many cracks that have now weakened
the foundation of the existing system and by extension, the
foundation of our country. Look to the laws of our land. There are
literally millions of pages of law with many thousands added every
year. No one, not the justices of the Supreme Court nor the
lawmakers who vote them into existence, knows them all. And of the
ones that are common, hardly any can agree on their interpretations
and/or applications.
Should we have laws that apply differently for those who can afford
to hire Roy Black or the late Johnnie Cochran then they have for me
because I have no money? No, we shouldn't, but unfortunately, we do.
Now, look at the police. When is the public going to realize that
the Rodney Kings, Maurice Greens (the New Orleans incident) and most
recently, the beating death of 15 year old Marcus Anderson, at the
hands of six or eight Bay County, Florida Sheriff's Deputies at a
youth boot camp; are only exceptions in that they were made public
only because they were caught on film? How many innocent men have to
be cleared by DNA before the truth of coerced confessions and
manipulated evidence is faced? How many innocent men are still in
prison for the crimes other then murder and rape for which there is
no DNA evidence to prove they were wrongly convicted by over zealous
police and prosecutors?
Now look to the courts. How many prosecutors have become public
avengers and violate their own law to aggravate sentences beyond the
legal limits? How many judges allow them to do so instead of
resigning them in as arbitrators of justice? Is it acceptable to
break the law as long as you do so when punishing someone who broke
the law first? This cannot be rationalized by the old adage that
it's acceptable because the criminal preyed on the innocent and the
courts are doing the best they can. (Many criminals are in prison
for crimes against other criminals.) And if you hunted down the man
who raped your daughter and shot him, I guarantee you that the same
prosecutor will put you in prison as a vigilante who took the law
into your own hands, and they will tell the jury that you cannot
break the law just because the rapist did. So why can they violate
statutory sentencing laws or procedures of court with impunity?
Following the law does not mean a judge or prosecutor is soft on
crime and a man convicted of a crime should be able to expect to be
arrested, tried, convicted and sentenced according to the law
without being scoffed at for having the audacity "to do so".
Now look to the Department of Correction. We have a system out of
control. Mismanagement wastes millions of taxpayer dollars and
physical, psychological and emotional abuse is rampant. The recent
shakeup in the FLDOC is now bringing to light what we in the system
have been fighting for years. If the Secretaries of Correction, his
regional directors, wardens and colonels, all of whom have been
running the DOC for years while rising up through the ranks, will
beat an ex-staff member and most of those present will lie for them
to help cover it up. If a captain will rape a female officer at a
party on prison property and no one stops him or helps her, can any
rational individual not accept that these things and worse happen to
the men and women over whom they have absolute control? Why are
there soldiers now in prison for humiliating and scaring prisoners
of war in Iraq but eight guards at Florida State Prison are free
after allegedly beating Frank Valdes to death? (The beating was so
brutal they broke almost every bone in his body and left boot prints
so well defined, the company's name and size were legible.) How does
society allow these criminals to go free but lock me away? Is it all
right to break the law if you wear a badge? Didn't anybody notice
that the stateside jobs held by the MP Reservists were mostly prison
guards? These men are not exceptions, but they are the rule. Those
guards that don't participate in such practices (and there are many
who do not), know these things go on yet do nothing about it and
will, if push comes to shove, help cover it up either through lies
or silence.
What is the point of all this? Why should you care? Why should you
help bring justice to drug addicts and predators? Because two
billion of your taxpayer dollars feed the FLDOC alone. How much more
goes to law enforcement and the courts, I can't even guess. All that
money for a system that doesn't even work. A retooled, refocused
system would not only free up much needed tax dollars for education
and health care, but would go a long way toward actually making the
system work as it should, turning men and women's lives around so
they can become productive members of society and this making
society a better, safer place for your children, your grandchildren
and beyond.
Can this be accomplished? Can it really be done? Yes it can be.
Explaining how, is going to take me some time, a lot of time. To do
so, I am going to try to break everything down into a series of
issues and deal with them one by one. I hope I can keep you
interested long enough to see it through and that somehow the right
chords will resonate within the right minds and something good will
become of it. Again, please bear with me.
'Til Next Time ~
The Unforgiven
They dedicate their lives / To running all of his / He tries to
please them all / This bitter man he is / Throughout his life the
same / He's battled constantly / This fight he cannot win
__________________
Cautious, careful people, always casting about to preserve their
reputations... can never effect a reform ~ Susan B Anthony
Criminal Justice System.
For twenty years I have watched, been caught up in and have fought
the corruption that is rampant throughout the entire system; from
the police on the street; through the courts (with over zealous
prosecutors who violate the law in the name of justice and the
judges who allow them to do it) and within the Department of
Corrections (whose policies are supposed to serve for the benefit of
the public but instead, serve only to place society in a greater
peril by creating men far angrier and dangerous then you can imagine
through brutality, depredation and official misconduct; then
releasing us into society with absolutely no chance to reintegrate
and lead a positive productive life.)
For twenty years I have wished for a voice, a voice of reason,
intelligent, just and compassionate. A voice of sanity in a dark and
brutal world, that is but a flicker on the edge of the awareness of
far too few in this, our God-fearing society. Now it seems I'm
finding that voice, my own . . .
Who am I? I am simply "The Unforgiven". I have no degrees or fancy
titles (except that of a convicted felon, for which I don't deem too
fancy.) I have instead, a wealth of experience; experience that can
never be matched by words in a textbook; and desire, the burning
desire to see positive change brought to a system gone hopelessly
awry.
I ask that those who read this to bear with me. I have never
attempted to write anything on as grand a scale as this will be (due
to the complexities of the nearly infinite issues that lie at the
core of this multibillion dollar beast I pray can be exposed and
tamed.) In fact, I've written next to nothing other then letters
(and so few of those that my girlfriend (Doing Time) keeps
threatening to make me single again!) I am a talker, not a writer
and the transition have frustrated me to no end.
Before I begin this little odyssey of mine, let me state for the
record my position on "the system":
Crime cannot be tolerated or condoned by anyone. Thus, "the system"
is an absolute necessity. Laws are a must to protect the innocent of
any society from the many types of predators out for personal gains
and/or pleasure. To enforce these laws we must have a police force
vested with any and all authority necessary to ensure said
enforcement. Once arrested, an accused individual must be given a
fair and just opportunity to prove any innocence and this process
must be overseen by lawyers, prosecutors and judges who uphold the
tenant engraved upon the face of this country's Supreme Court: Equal
Justice for All. Finally, there must be a prison system in which
those found guilty of crimes against society can be held separate
from the people they have harmed and the rest of society to whom
they pose a threat due to their criminal nature.
It may seem to you that I have stated the obvious since this is a
system you see as already existing. Now though, I want you to try to
see beyond the obvious into the many cracks that have now weakened
the foundation of the existing system and by extension, the
foundation of our country. Look to the laws of our land. There are
literally millions of pages of law with many thousands added every
year. No one, not the justices of the Supreme Court nor the
lawmakers who vote them into existence, knows them all. And of the
ones that are common, hardly any can agree on their interpretations
and/or applications.
Should we have laws that apply differently for those who can afford
to hire Roy Black or the late Johnnie Cochran then they have for me
because I have no money? No, we shouldn't, but unfortunately, we do.
Now, look at the police. When is the public going to realize that
the Rodney Kings, Maurice Greens (the New Orleans incident) and most
recently, the beating death of 15 year old Marcus Anderson, at the
hands of six or eight Bay County, Florida Sheriff's Deputies at a
youth boot camp; are only exceptions in that they were made public
only because they were caught on film? How many innocent men have to
be cleared by DNA before the truth of coerced confessions and
manipulated evidence is faced? How many innocent men are still in
prison for the crimes other then murder and rape for which there is
no DNA evidence to prove they were wrongly convicted by over zealous
police and prosecutors?
Now look to the courts. How many prosecutors have become public
avengers and violate their own law to aggravate sentences beyond the
legal limits? How many judges allow them to do so instead of
resigning them in as arbitrators of justice? Is it acceptable to
break the law as long as you do so when punishing someone who broke
the law first? This cannot be rationalized by the old adage that
it's acceptable because the criminal preyed on the innocent and the
courts are doing the best they can. (Many criminals are in prison
for crimes against other criminals.) And if you hunted down the man
who raped your daughter and shot him, I guarantee you that the same
prosecutor will put you in prison as a vigilante who took the law
into your own hands, and they will tell the jury that you cannot
break the law just because the rapist did. So why can they violate
statutory sentencing laws or procedures of court with impunity?
Following the law does not mean a judge or prosecutor is soft on
crime and a man convicted of a crime should be able to expect to be
arrested, tried, convicted and sentenced according to the law
without being scoffed at for having the audacity "to do so".
Now look to the Department of Correction. We have a system out of
control. Mismanagement wastes millions of taxpayer dollars and
physical, psychological and emotional abuse is rampant. The recent
shakeup in the FLDOC is now bringing to light what we in the system
have been fighting for years. If the Secretaries of Correction, his
regional directors, wardens and colonels, all of whom have been
running the DOC for years while rising up through the ranks, will
beat an ex-staff member and most of those present will lie for them
to help cover it up. If a captain will rape a female officer at a
party on prison property and no one stops him or helps her, can any
rational individual not accept that these things and worse happen to
the men and women over whom they have absolute control? Why are
there soldiers now in prison for humiliating and scaring prisoners
of war in Iraq but eight guards at Florida State Prison are free
after allegedly beating Frank Valdes to death? (The beating was so
brutal they broke almost every bone in his body and left boot prints
so well defined, the company's name and size were legible.) How does
society allow these criminals to go free but lock me away? Is it all
right to break the law if you wear a badge? Didn't anybody notice
that the stateside jobs held by the MP Reservists were mostly prison
guards? These men are not exceptions, but they are the rule. Those
guards that don't participate in such practices (and there are many
who do not), know these things go on yet do nothing about it and
will, if push comes to shove, help cover it up either through lies
or silence.
What is the point of all this? Why should you care? Why should you
help bring justice to drug addicts and predators? Because two
billion of your taxpayer dollars feed the FLDOC alone. How much more
goes to law enforcement and the courts, I can't even guess. All that
money for a system that doesn't even work. A retooled, refocused
system would not only free up much needed tax dollars for education
and health care, but would go a long way toward actually making the
system work as it should, turning men and women's lives around so
they can become productive members of society and this making
society a better, safer place for your children, your grandchildren
and beyond.
Can this be accomplished? Can it really be done? Yes it can be.
Explaining how, is going to take me some time, a lot of time. To do
so, I am going to try to break everything down into a series of
issues and deal with them one by one. I hope I can keep you
interested long enough to see it through and that somehow the right
chords will resonate within the right minds and something good will
become of it. Again, please bear with me.
'Til Next Time ~
The Unforgiven
They dedicate their lives / To running all of his / He tries to
please them all / This bitter man he is / Throughout his life the
same / He's battled constantly / This fight he cannot win
__________________
Cautious, careful people, always casting about to preserve their
reputations... can never effect a reform ~ Susan B Anthony
Wednesday, March 22, 2006
Dying Well in Corrections: Why Should We Care?
Dying Well in Corrections: Why Should We Care?
Journal of Correctional Health Care
Ira R. Byock, M.D.
Research Professor of Philosophy
Director, Promoting Excellence in End of Life Care
University of Montana, Missoula
Why should anyone care how convicts die? For some, humane treatment is the right
thing to do, but others feel criminals deserve whatever happens. American courts have
affirmed society’s responsibility to provide a community level of care for prisoners.
Many challenges confronting corrections in delivering excellent end-of-life care are
similar to those facing the nation’s health care system. Chronically ill and infirm
elderly patients often feel imprisoned by their disease, disability and confinement
within medical institutions. Prison hospices represent a constructive development.
The staff and inmate volunteers that work in them have important lessons to teach our
contemporary society.
Why Should We Care?
Dying in prison is what inmates dread most. They fear spending their last hours in
agony, alone, separated from family outside and from friends within prison walls. Yet
those worst dreams can come true for over 2,500 prisoners a year, who die manacled in
hospitals or in prison infirmaries.
Why should we care where and how inmates die? This question is implicit whenever
prison hospice or compassionate release is discussed in the media and with
politicians. Many people would respond that we should care simply because prisoners
are human beings and humane treatment is simply the right thing to do. Many
Americans, however, feel that convicted murderers, rapists, child molesters, and drug
dealers deserve whatever they get. If they die suffering, in pain and alone, so be
it.
But turning a blind eye is not an option. American courts have forcefully
distinguished punishment from brutality and have repeatedly affirmed society’s
responsibility to provide a community level of care for prisoners, most notably in
Estelle v. Gamble. ("Estelle v. Gamble," 1976) The correctional discipline has
incorporated this stance in guidelines and policy statements. The American
Correctional Association’s 1996 Task Force on Health Care in Corrections stated:
Correctional jurisdictions must utilize a comprehensive, holistic approach to
providing health and mental health care services which are sensitive to the cultural,
subcultural, age, and gender-specific needs of a growing and diverse population. All
services provided must be consistent with contemporary health standards. (American
Correctional Association, 1996)
Under the constant scrutiny of prisoners and advocate groups, federal and state
institutions, which fail to honor their responsibility to provide adequate care, risk
legal peril and fiscal liability. Consequently, excellent medical care in corrections
is well aligned with society’s (read taxpayers’) best interests.
Why should we care how prisoners die? A more considered response is that we should
care because all of us, even those of us who are well-to-do and strictly law-abiding,
are at risk of winding up in similar circumstances as we approach life’s end. There
are striking similarities between being given a long prison sentence and receiving
the diagnosis of a debilitating or terminal illness. More striking still are the
similarities between imprisonment and the forced confinement of a stroke, multiple
sclerosis, ALS, or the disability of an advanced illness (loss of function,
independence, etc.).
In her book Refuge, Terry Tempest Williams (1991) writes of her mother's illness and
death.
"I want you to read ‘God Sees the Truth, but Waits,'" said Mother. "Tolstoy writes
about a man, wrongly accused of a murder, who spends the rest of his life in a prison
camp. Twenty-six years later, as a convict in Siberia, he meets the true murderer
and has an opportunity to free himself, but chooses not to. His longing for home
leaves him and he dies."
I ask Mother why this story matters to her.
"Each of us must face our own Siberia," she says. "We must come to peace within our
own isolation. No one can rescue us. My cancer is my Siberia." (Williams, 1991)
When it comes to health care, dying prisoners are one category of a group we might
call "the least among us." All of us, and every person we love, are at risk of
entering that unfortunate group. Death has been called "the great equalizer"; so too
are its cousins: illness, dementia, physical debility, and advanced age. From a
sociologic perspective dying prisoners are more similar to other groups of people –
such as those with Alzheimer's disease or advanced Parkinson's disease, or
Huntington's disease, or serious head injury or paralysis – than different. People
with such unenviable conditions are devalued by our culture. They are not viewed as
useful to society in any practical sense and thus may be seen merely as a drain on
society's resources. People who are most frail and elderly can be made to feel
guilty by society, and at times even by their own families, for the crime of being
seriously ill or debilitated and not dying quickly enough.
Jail is not the only place a person can be imprisoned. Even if one has never broken a
law, a person who is seriously ill or physically dependent may end up feeling
defenseless in an uncaring environment. Most Americans would like to be at home,
surrounded by loved ones as they die.(Tyler, 1997) Yet fully 80% of Americans die in
hospitals and nursing homes. When Goodlin and her associates examined the records of
104 patients who died in an academic medical center and an affiliated Veterans
Affairs hospital, they found that 18% were in physical restraints within 48 hours of
their death.(Goodlin, Winzelberg, Teno, Whedon, & Lynn, 1998)
Anna Mae Halgrim was one person who felt imprisoned by her age, disability, and her
clinical environment. In an article published posthumously in Newsweek , Halgrim
poignantly describes her life in a nursing home "from the inside."
I tried once or twice to make my feelings known. I even shouted once. That gained me
a reputation of being "crotchety."... After I've asked for help more than a dozen
times and receive nothing more than a dozen condescending smiles and a "Yes, deary,
I'm working on it," something begins to break. That time I wanted to be taken to the
bathroom.
I'd love to go for a meal, to travel again. I'd love to go to my own church, sing
with my own choir. I'd love to visit my friends.…
Something else I've learned to accept is loss of privacy. Quite often I'll close my
door when my roommate – imagine having a roommate at my age – is in the TV room. I do
appreciate some time to myself and I believe that I have earned at least that
courtesy. As I sit thinking or writing, one of the aides invariably opens the door
unannounced and walks in as if I'm not there. Sometimes she even opens my drawers and
begins rummaging around. Am I invisible? Have I lost my right to respect and dignity?
I am still a human being. I would like to be treated as one.
Did you ever sit in a wheelchair over an extended period of time? It's not
comfortable. The seat squeezes you into the middle and applies constant pressure on
your hips. The armrests are too narrow and my arms slip off. I am luckier than some.
Others are strapped into their chairs and abandoned in front of the TV. Captive
prisoners of daytime television….
The afternoon drags into early evening. This used to be my favorite time of the day.
Things would wind down. I would kick off my shoes. Put my feet on the coffee table.
Pop open a bottle of Chablis and enjoy the fruits of my day's labor with my husband.
He's gone. So is my health. This is my world. (Halgrim, June 27, 1994)
Since at the end of life we are far more alike than different from one another, how
we care for others may well determine how we are cared for ourselves.
Of course, ensuring a high quality of care for inmates as they die is easier said
than done. Social trends have contributed to rising numbers of incarcerated people.
The reasons are well known. Rising crime rates, the “war on drugs,” more effective
policing and prosecution, harsher sentences, “three-strikes-you’re-out” laws, and
other mandatory sentencing laws have put more people behind bars for longer times.
Chronic illness, psychiatric illness, developmental delay, and seizure disorders have
historically been prevalent in prison. Now, swelling and aging inmate populations
with high rates of drug abuse, hepatitis, HIV, cancer, heart and lung disease–even
tuberculosis–are straining budgets to the breaking point.
Several factors complicate attempts to provide care and contribute to the suffering
of dying inmates. Prisons are rife with personality disorders, racism, and gangs.
Aggressiveness is an adaptive asset. Isolation and anger abound, and hostility finds
fertile ground. Seeds of compassion among security personnel and inmates find little
soil in which to take root. As illness-related disability progresses, an inmate
becomes vulnerable in this environment. Isolation cuts patients off from family
outside, and even from “family” and friends inside. Security rules, including
precautions to curtail diversion of mediations, may result in limited access to
narcotic analgesics on which hospice and palliative care rely. Inmate distrust of
corrections causes tension between inmates and providers.
Correctional physicians’ expertise in palliating symptoms and counseling individuals
confronting life’s end also may be limited. Continuity of care is not easy to
achieve. Plans of care may not be followed; what worked the last few days may be
changed by the doctor coming on shift who wants to do it his way.
The situation confronting correctional end-of-life (EOL) care is more critical, but
the obstacles are not fundamentally different from many pervasive barriers
encountered in striving to provide excellent health care for dying Americans. The
Institute of Medicine's 1997 report, Approaching Death, points to serious
deficiencies in medical education, in health systems financing, and in attitudes and
culture, and cites extensive errors of omission and commission in clinical
practice.(Field & Cassell, 1997) Physical pain, for all our medical prowess, remains
poorly treated, even in prestigious medical institutions, as a series of studies,
including the widely referenced SUPPORT study, make clear.(SUPPORT Principal
Investigators, 1995) Another study, looking at pain treatment in the nation’s
nursing homes, concluded that 42% of the 4,000 studied were seriously undertreated,
either receiving no pain medication (26%) or as little as one dose a day of
acetaminophen or aspirin (16%).(Bernabei et al., 1998) Studies in outpatient cancer
clinics and HIV clinics have yielded similar results. In each, around 40_50% of
patients were found to be undertreated. (Breitbart et al., 1996; Cleeland et al.,
1994) The aging of the baby boomers, the increase in prolonged chronic illnesses, and
the shrinking pool of caregivers threaten to make today’s crisis much worse.
All this casts a bright light on the need for creative, bold new approaches—a shift
in our cultural orientation towards life's end. How we care for the most
disadvantaged, frail, elderly, and ill among us is the central social and moral
challenge confronting our generation. To build solutions, it is important to consider
what success would look like: in a patient’s life, in our clinical practice, and in
our careers as corrections professionals.
Success in EOL care would look a lot like palliative care. Hospice and palliative
care are often used as synonyms. As I define them, palliative care is a discipline of
practice; hospice is a way of delivering that discipline. The elements of palliative
care are encompassed in hospice standards (National Hospice Organization Standards
and Accreditation Committee, 1997) and the Last Acts Task Force’s “Precepts of
Palliative Care.”(Last Acts Task Force, 1998) Palliative care:
involves respect for patient autonomy and the role of family and legal surrogates in
making decisions for patients when they cannot.
involves an interdisciplinary team approach.
cares for the individual who is dying with his or her family and close friends.
focuses and depends on effective and, when necessary, intensive symptom management.
No modality is withheld in service of comfort and quality of life.
is distinguished from the best of general medicine in understanding that dying is a
time of life, part of the human life cycle. Improving quality of life is therefore a
primary goal.
recognizes that a patient’s inner life often comes to the fore as death comes near,
and extends support for this realm of the person’s experience.
extends to bereavement support for families and understands the importance of
funerals and memorials. (It is gratifying that bereavement programs are a prominent
part of prison hospices around the country.)
Sometimes palliative care is equated with symptom management, but they are different.
Symptom management is the first priority for palliative care; until clinicians get
some control of symptoms, patients often are not able to attend to anything else.
Their symptoms command attention; managing them can be difficult, requiring intensive
care. But while pain management is the first priority, it is not the ultimate goal.
Palliative care recognizes that dying is more than a set of medical problems to be
solved. Dying is personal; it is experiential. Care for people who are dying helps
them to say and do the things that matter most to them.
The period of living we call “dying” holds important opportunities for communication,
for completing relationships, even reconciling strained relationships between family
members, former spouses, or close friends. Beyond this, there is a chance to tell
one’s stories and review one’s life, to make a unique contribution to the family
legacy, and for those around the dying person to listen and receive, to affirm for
the person departing the value of their being and their story. And there is a chance
to explore soulful and spiritual aspects of life, those deeper questions of meaning
and connection inherent in the human condition. (Byock, 1996, 1997)
“Family” in this circumstance is not defined by marriage or bloodline alone, but by
the phrase “for whom it matters.” Family needs are simple to define in palliative
care. Families need to know their loved ones received the best care possible:
life-prolonging care, palliation of symptoms, and care for quality of life. Families
need to know that their loved ones’ preferences for care were honored and that they
were treated in a dignified manner, that they had the chance to say and do the things
that mattered most to them. And families need to feel that their loved ones were not
only cared for in a competent medical way, but in a way that honored and even
celebrated them. Finally, families usually need time to grieve together.
We know what real excellence in EOL care looks like. It’s part of the culture; it is
conveyed by the phrase, tender loving care.
Mark Wilson, serving a life sentence at Oregon State Penitentiary, has written about
his experience as a hospice volunteer for a fellow inmate dying of muscle cancer.
I knew that Benito’s death would be very painful for me if I allowed myself to get
close to him. But keeping my distance or imposing boundaries on our relationship were
never options for me. I wanted and needed to open my heart completely, to be there
for him unconditionally, no matter how painful it might be for me in the end.
When Benito was overcome by fear of pain, I stayed through the night when I could.
Sometimes we talked all night; sometimes I spent the night supporting his head with a
pillow as he tried to nap in a wheelchair, the least painful position for him.
Sometimes I massaged knots out of tight, pain-ravaged muscles, and sometimes I just
sat quietly next to him so he wouldn’t be alone.
Benito’s trust in me grew and our bond deepened as we spent countless hours talking
about the things that mattered most: family, love, memories, fears, regrets,
spiritual questions, pain, cancer and death.
He gave me a gift that I will treasure until the day I die when he said, “A month ago
I didn’t know you existed, but now you are my family.”
A hospice vigil began for Benito [when] it was believed that he was within 48 hours
of death. His family was escorted to the infirmary where they joined Benito and me.
We were with him around the clock, comforting him by placing cool washcloths on his
forehead, fluffing his pillows, holding his hand and doing anything else we thought
might ease his suffering.
I attempted to stay in the background as the family shared their intimate stories,
laughter and love, tears and pain. But as the four of them were saying their
good-byes, Benito called for me. Without hesitation, his family opened their hearts
and allowed me to share in this profoundly intimate moment. We hugged and cried as
each of us told Benito how special he was to us and how much we were going to miss
him.
Gradually he slipped into a coma-like state. We were all aware that he was about to
die. Yet there was a deep sense of peace and resolve among us. We wanted him to know
that we were all still with him. None of us wanted to leave his side. It was a rare
moment that we all weren’t touching him. Benito passed away at 9:20.(Wilson, 2000)
In contrast to the vision that inmates have of dying inside, the process
of dying amidst love can liberate people, creating a space of freedom inside as they
die. That’s what success looks like.
How do we get there from where we are? Having professional standards helps. Formal
standards claim the high ground, giving us guidelines for building programs. The 1996
American Correctional Association Task Force Report called for the establishment of
hospice services for terminally ill offenders supported by a compassionate release
program for those who qualify. Each correctional jurisdiction shall have written
policies and defined procedures in support of a program to provide for the treatment
and disposition of offenders with terminal illnesses. (American Correctional
Association, 1996)
This need is emphasized by the GRACE Project standards (GRACE Project, 2000), and in
the March 2001 Health Resources and Services Administration funded task force report
on Improving Palliative Care Practice in Jails and Prisons (Dubler & Post, 2001) and
the National Commission on Correctional Health Care Draft Standards (National
Commission on Correctional Health Care, In Draft). Statements such as the Last Acts
“Precepts of Palliative Care” (Last Acts Task Force, 1998) and the American
Geriatrics Society 1997 statement ”Measuring Quality of Care at the End of Life”
(American Geriatrics Society, 1997) offer basic outlines and domains of quality for
protocols and for education of clinicians, security personnel, and administration, as
well as of the public and legislators.
As we integrate professional and institutional standards into our programs, we need
to encourage collaboration. However, while we work together, we must also keep our
roles distinct. Prison chaplains do not perform well as jailers, and security
personnel cannot provide clinical care.
We need to discern domains of quality and not only measure conformity with standards,
but also distinguish excellent care from merely mediocre care. Measurement tools can
be embedded in institutional quality improvement programs. Dynamic corrections
requires continual improvement, and measurement allows us to use data to increase
program effectiveness and improve our discipline. Measurement also helps fiscal
accountability.
DOC administrators and managers will find hospice programs positive and
cost-effective. By providing high quality care that measurably conforms to community
standards, the correctional system also will earn some protection from legal
allegations of deficient care.
The prospect of dying inmates actually receiving not only medically competent but
genuinely compassionate, loving care seems implausible. Yet thirty-five or more
programs currently exist or are in development, most experiencing real success.
Courageous but also cautious wardens and leaders within departments of corrections
have supported them without sacrificing the priorities of detention, safety, and
security. Hospice leaders have reached out to correctional staff, sharing expertise
and resources. Clinicians caring for inmates have exhibited true professionalism in
adapting hospice to their environments. But most credit belongs to the inmate
volunteers, whose efforts and commitment are extraordinary.
Visiting with prison hospice volunteers and correctional staff has reminded me of
William Golding's classic novel, Lord of the Flies. In this story about adolescents
stranded on a remote island and stripped of the usual constraints of civilized life,
cooperation gradually gives way to competition, conflict, and aggression.
Penitentiaries are islands within our society, where isolation, anger, and hostility
abound. Choices between cooperation and conflict are made daily. Yet prison hospices
are the opposite of Golding's chaotic island.
Inmate volunteers attest the remarkable transformative effect of hospice work:
I have learned that life is precious and so is what I do with it. Life is a beautiful
gift and without the men who showed me death, I might never have learned to live....
Hospice work has opened my heart. It has given new vision. It has changed part of my
nature…. I care more for people now.
I volunteered for hospice because I saw it as an opportunity to do something positive
for someone else which in turn allows me to feel better about who I am. My motivation
now comes from what I see in a patient's eyes as I enter the room. I know that if I'm
of no value to anyone else, I am of value to him.
There are evil people in the world, and many inmates we meet have been guilty of
vicious acts. No amount of good deeds can exonerate an inmate or make up for murder
or other crimes of violence. But recognizing the presence of evil, I also recognize
where it is not. Whatever they did and however wicked they may have been in the past,
the patients and hospice volunteers I have met are far from evil now.
Clinicians do not have to reconcile issues of legal or metaphysical guilt before
caring for patients or families. Such considerations are irrelevant to the task of
caring. Genuine palliative care entails preserving the capacity of patients and
families to grow through the end of life. Prison hospice workers observe personal
qualities of openness, honesty, and tenderness in patients and volunteers.
Ironically, these are qualities associated with childhood innocence. We do not have
to reconcile philosophical or metaphysical issues of guilt and innocence to recognize
that real transformations do happen. Acceptance of this fact is distinct from issues
of legal guilt. Acknowledging genuine, positive change in an inmate does not require
society to modify his or her sentence. We can recognize people for who they are,
today, and respect and encourage their remarkable work.
Sometimes life's most profound lessons come from unexpected places. Prison hospices
programs have something important to teach. It is worth examining why, in aggressive
and predatory prison environments, inmates are choosing to work together, without
recognition or material reward, to care for one another and to build a civil
community.
Their compassion and hours of work are evidence of goodness within the human
condition where one would least expect to find it. Their commitment to one another is
a declaration of value and dignity in every human life and a vow to build a better
future right where they live. We all have something to learn from that.
Journal of Correctional Health Care
Ira R. Byock, M.D.
Research Professor of Philosophy
Director, Promoting Excellence in End of Life Care
University of Montana, Missoula
Why should anyone care how convicts die? For some, humane treatment is the right
thing to do, but others feel criminals deserve whatever happens. American courts have
affirmed society’s responsibility to provide a community level of care for prisoners.
Many challenges confronting corrections in delivering excellent end-of-life care are
similar to those facing the nation’s health care system. Chronically ill and infirm
elderly patients often feel imprisoned by their disease, disability and confinement
within medical institutions. Prison hospices represent a constructive development.
The staff and inmate volunteers that work in them have important lessons to teach our
contemporary society.
Why Should We Care?
Dying in prison is what inmates dread most. They fear spending their last hours in
agony, alone, separated from family outside and from friends within prison walls. Yet
those worst dreams can come true for over 2,500 prisoners a year, who die manacled in
hospitals or in prison infirmaries.
Why should we care where and how inmates die? This question is implicit whenever
prison hospice or compassionate release is discussed in the media and with
politicians. Many people would respond that we should care simply because prisoners
are human beings and humane treatment is simply the right thing to do. Many
Americans, however, feel that convicted murderers, rapists, child molesters, and drug
dealers deserve whatever they get. If they die suffering, in pain and alone, so be
it.
But turning a blind eye is not an option. American courts have forcefully
distinguished punishment from brutality and have repeatedly affirmed society’s
responsibility to provide a community level of care for prisoners, most notably in
Estelle v. Gamble. ("Estelle v. Gamble," 1976) The correctional discipline has
incorporated this stance in guidelines and policy statements. The American
Correctional Association’s 1996 Task Force on Health Care in Corrections stated:
Correctional jurisdictions must utilize a comprehensive, holistic approach to
providing health and mental health care services which are sensitive to the cultural,
subcultural, age, and gender-specific needs of a growing and diverse population. All
services provided must be consistent with contemporary health standards. (American
Correctional Association, 1996)
Under the constant scrutiny of prisoners and advocate groups, federal and state
institutions, which fail to honor their responsibility to provide adequate care, risk
legal peril and fiscal liability. Consequently, excellent medical care in corrections
is well aligned with society’s (read taxpayers’) best interests.
Why should we care how prisoners die? A more considered response is that we should
care because all of us, even those of us who are well-to-do and strictly law-abiding,
are at risk of winding up in similar circumstances as we approach life’s end. There
are striking similarities between being given a long prison sentence and receiving
the diagnosis of a debilitating or terminal illness. More striking still are the
similarities between imprisonment and the forced confinement of a stroke, multiple
sclerosis, ALS, or the disability of an advanced illness (loss of function,
independence, etc.).
In her book Refuge, Terry Tempest Williams (1991) writes of her mother's illness and
death.
"I want you to read ‘God Sees the Truth, but Waits,'" said Mother. "Tolstoy writes
about a man, wrongly accused of a murder, who spends the rest of his life in a prison
camp. Twenty-six years later, as a convict in Siberia, he meets the true murderer
and has an opportunity to free himself, but chooses not to. His longing for home
leaves him and he dies."
I ask Mother why this story matters to her.
"Each of us must face our own Siberia," she says. "We must come to peace within our
own isolation. No one can rescue us. My cancer is my Siberia." (Williams, 1991)
When it comes to health care, dying prisoners are one category of a group we might
call "the least among us." All of us, and every person we love, are at risk of
entering that unfortunate group. Death has been called "the great equalizer"; so too
are its cousins: illness, dementia, physical debility, and advanced age. From a
sociologic perspective dying prisoners are more similar to other groups of people –
such as those with Alzheimer's disease or advanced Parkinson's disease, or
Huntington's disease, or serious head injury or paralysis – than different. People
with such unenviable conditions are devalued by our culture. They are not viewed as
useful to society in any practical sense and thus may be seen merely as a drain on
society's resources. People who are most frail and elderly can be made to feel
guilty by society, and at times even by their own families, for the crime of being
seriously ill or debilitated and not dying quickly enough.
Jail is not the only place a person can be imprisoned. Even if one has never broken a
law, a person who is seriously ill or physically dependent may end up feeling
defenseless in an uncaring environment. Most Americans would like to be at home,
surrounded by loved ones as they die.(Tyler, 1997) Yet fully 80% of Americans die in
hospitals and nursing homes. When Goodlin and her associates examined the records of
104 patients who died in an academic medical center and an affiliated Veterans
Affairs hospital, they found that 18% were in physical restraints within 48 hours of
their death.(Goodlin, Winzelberg, Teno, Whedon, & Lynn, 1998)
Anna Mae Halgrim was one person who felt imprisoned by her age, disability, and her
clinical environment. In an article published posthumously in Newsweek , Halgrim
poignantly describes her life in a nursing home "from the inside."
I tried once or twice to make my feelings known. I even shouted once. That gained me
a reputation of being "crotchety."... After I've asked for help more than a dozen
times and receive nothing more than a dozen condescending smiles and a "Yes, deary,
I'm working on it," something begins to break. That time I wanted to be taken to the
bathroom.
I'd love to go for a meal, to travel again. I'd love to go to my own church, sing
with my own choir. I'd love to visit my friends.…
Something else I've learned to accept is loss of privacy. Quite often I'll close my
door when my roommate – imagine having a roommate at my age – is in the TV room. I do
appreciate some time to myself and I believe that I have earned at least that
courtesy. As I sit thinking or writing, one of the aides invariably opens the door
unannounced and walks in as if I'm not there. Sometimes she even opens my drawers and
begins rummaging around. Am I invisible? Have I lost my right to respect and dignity?
I am still a human being. I would like to be treated as one.
Did you ever sit in a wheelchair over an extended period of time? It's not
comfortable. The seat squeezes you into the middle and applies constant pressure on
your hips. The armrests are too narrow and my arms slip off. I am luckier than some.
Others are strapped into their chairs and abandoned in front of the TV. Captive
prisoners of daytime television….
The afternoon drags into early evening. This used to be my favorite time of the day.
Things would wind down. I would kick off my shoes. Put my feet on the coffee table.
Pop open a bottle of Chablis and enjoy the fruits of my day's labor with my husband.
He's gone. So is my health. This is my world. (Halgrim, June 27, 1994)
Since at the end of life we are far more alike than different from one another, how
we care for others may well determine how we are cared for ourselves.
Of course, ensuring a high quality of care for inmates as they die is easier said
than done. Social trends have contributed to rising numbers of incarcerated people.
The reasons are well known. Rising crime rates, the “war on drugs,” more effective
policing and prosecution, harsher sentences, “three-strikes-you’re-out” laws, and
other mandatory sentencing laws have put more people behind bars for longer times.
Chronic illness, psychiatric illness, developmental delay, and seizure disorders have
historically been prevalent in prison. Now, swelling and aging inmate populations
with high rates of drug abuse, hepatitis, HIV, cancer, heart and lung disease–even
tuberculosis–are straining budgets to the breaking point.
Several factors complicate attempts to provide care and contribute to the suffering
of dying inmates. Prisons are rife with personality disorders, racism, and gangs.
Aggressiveness is an adaptive asset. Isolation and anger abound, and hostility finds
fertile ground. Seeds of compassion among security personnel and inmates find little
soil in which to take root. As illness-related disability progresses, an inmate
becomes vulnerable in this environment. Isolation cuts patients off from family
outside, and even from “family” and friends inside. Security rules, including
precautions to curtail diversion of mediations, may result in limited access to
narcotic analgesics on which hospice and palliative care rely. Inmate distrust of
corrections causes tension between inmates and providers.
Correctional physicians’ expertise in palliating symptoms and counseling individuals
confronting life’s end also may be limited. Continuity of care is not easy to
achieve. Plans of care may not be followed; what worked the last few days may be
changed by the doctor coming on shift who wants to do it his way.
The situation confronting correctional end-of-life (EOL) care is more critical, but
the obstacles are not fundamentally different from many pervasive barriers
encountered in striving to provide excellent health care for dying Americans. The
Institute of Medicine's 1997 report, Approaching Death, points to serious
deficiencies in medical education, in health systems financing, and in attitudes and
culture, and cites extensive errors of omission and commission in clinical
practice.(Field & Cassell, 1997) Physical pain, for all our medical prowess, remains
poorly treated, even in prestigious medical institutions, as a series of studies,
including the widely referenced SUPPORT study, make clear.(SUPPORT Principal
Investigators, 1995) Another study, looking at pain treatment in the nation’s
nursing homes, concluded that 42% of the 4,000 studied were seriously undertreated,
either receiving no pain medication (26%) or as little as one dose a day of
acetaminophen or aspirin (16%).(Bernabei et al., 1998) Studies in outpatient cancer
clinics and HIV clinics have yielded similar results. In each, around 40_50% of
patients were found to be undertreated. (Breitbart et al., 1996; Cleeland et al.,
1994) The aging of the baby boomers, the increase in prolonged chronic illnesses, and
the shrinking pool of caregivers threaten to make today’s crisis much worse.
All this casts a bright light on the need for creative, bold new approaches—a shift
in our cultural orientation towards life's end. How we care for the most
disadvantaged, frail, elderly, and ill among us is the central social and moral
challenge confronting our generation. To build solutions, it is important to consider
what success would look like: in a patient’s life, in our clinical practice, and in
our careers as corrections professionals.
Success in EOL care would look a lot like palliative care. Hospice and palliative
care are often used as synonyms. As I define them, palliative care is a discipline of
practice; hospice is a way of delivering that discipline. The elements of palliative
care are encompassed in hospice standards (National Hospice Organization Standards
and Accreditation Committee, 1997) and the Last Acts Task Force’s “Precepts of
Palliative Care.”(Last Acts Task Force, 1998) Palliative care:
involves respect for patient autonomy and the role of family and legal surrogates in
making decisions for patients when they cannot.
involves an interdisciplinary team approach.
cares for the individual who is dying with his or her family and close friends.
focuses and depends on effective and, when necessary, intensive symptom management.
No modality is withheld in service of comfort and quality of life.
is distinguished from the best of general medicine in understanding that dying is a
time of life, part of the human life cycle. Improving quality of life is therefore a
primary goal.
recognizes that a patient’s inner life often comes to the fore as death comes near,
and extends support for this realm of the person’s experience.
extends to bereavement support for families and understands the importance of
funerals and memorials. (It is gratifying that bereavement programs are a prominent
part of prison hospices around the country.)
Sometimes palliative care is equated with symptom management, but they are different.
Symptom management is the first priority for palliative care; until clinicians get
some control of symptoms, patients often are not able to attend to anything else.
Their symptoms command attention; managing them can be difficult, requiring intensive
care. But while pain management is the first priority, it is not the ultimate goal.
Palliative care recognizes that dying is more than a set of medical problems to be
solved. Dying is personal; it is experiential. Care for people who are dying helps
them to say and do the things that matter most to them.
The period of living we call “dying” holds important opportunities for communication,
for completing relationships, even reconciling strained relationships between family
members, former spouses, or close friends. Beyond this, there is a chance to tell
one’s stories and review one’s life, to make a unique contribution to the family
legacy, and for those around the dying person to listen and receive, to affirm for
the person departing the value of their being and their story. And there is a chance
to explore soulful and spiritual aspects of life, those deeper questions of meaning
and connection inherent in the human condition. (Byock, 1996, 1997)
“Family” in this circumstance is not defined by marriage or bloodline alone, but by
the phrase “for whom it matters.” Family needs are simple to define in palliative
care. Families need to know their loved ones received the best care possible:
life-prolonging care, palliation of symptoms, and care for quality of life. Families
need to know that their loved ones’ preferences for care were honored and that they
were treated in a dignified manner, that they had the chance to say and do the things
that mattered most to them. And families need to feel that their loved ones were not
only cared for in a competent medical way, but in a way that honored and even
celebrated them. Finally, families usually need time to grieve together.
We know what real excellence in EOL care looks like. It’s part of the culture; it is
conveyed by the phrase, tender loving care.
Mark Wilson, serving a life sentence at Oregon State Penitentiary, has written about
his experience as a hospice volunteer for a fellow inmate dying of muscle cancer.
I knew that Benito’s death would be very painful for me if I allowed myself to get
close to him. But keeping my distance or imposing boundaries on our relationship were
never options for me. I wanted and needed to open my heart completely, to be there
for him unconditionally, no matter how painful it might be for me in the end.
When Benito was overcome by fear of pain, I stayed through the night when I could.
Sometimes we talked all night; sometimes I spent the night supporting his head with a
pillow as he tried to nap in a wheelchair, the least painful position for him.
Sometimes I massaged knots out of tight, pain-ravaged muscles, and sometimes I just
sat quietly next to him so he wouldn’t be alone.
Benito’s trust in me grew and our bond deepened as we spent countless hours talking
about the things that mattered most: family, love, memories, fears, regrets,
spiritual questions, pain, cancer and death.
He gave me a gift that I will treasure until the day I die when he said, “A month ago
I didn’t know you existed, but now you are my family.”
A hospice vigil began for Benito [when] it was believed that he was within 48 hours
of death. His family was escorted to the infirmary where they joined Benito and me.
We were with him around the clock, comforting him by placing cool washcloths on his
forehead, fluffing his pillows, holding his hand and doing anything else we thought
might ease his suffering.
I attempted to stay in the background as the family shared their intimate stories,
laughter and love, tears and pain. But as the four of them were saying their
good-byes, Benito called for me. Without hesitation, his family opened their hearts
and allowed me to share in this profoundly intimate moment. We hugged and cried as
each of us told Benito how special he was to us and how much we were going to miss
him.
Gradually he slipped into a coma-like state. We were all aware that he was about to
die. Yet there was a deep sense of peace and resolve among us. We wanted him to know
that we were all still with him. None of us wanted to leave his side. It was a rare
moment that we all weren’t touching him. Benito passed away at 9:20.(Wilson, 2000)
In contrast to the vision that inmates have of dying inside, the process
of dying amidst love can liberate people, creating a space of freedom inside as they
die. That’s what success looks like.
How do we get there from where we are? Having professional standards helps. Formal
standards claim the high ground, giving us guidelines for building programs. The 1996
American Correctional Association Task Force Report called for the establishment of
hospice services for terminally ill offenders supported by a compassionate release
program for those who qualify. Each correctional jurisdiction shall have written
policies and defined procedures in support of a program to provide for the treatment
and disposition of offenders with terminal illnesses. (American Correctional
Association, 1996)
This need is emphasized by the GRACE Project standards (GRACE Project, 2000), and in
the March 2001 Health Resources and Services Administration funded task force report
on Improving Palliative Care Practice in Jails and Prisons (Dubler & Post, 2001) and
the National Commission on Correctional Health Care Draft Standards (National
Commission on Correctional Health Care, In Draft). Statements such as the Last Acts
“Precepts of Palliative Care” (Last Acts Task Force, 1998) and the American
Geriatrics Society 1997 statement ”Measuring Quality of Care at the End of Life”
(American Geriatrics Society, 1997) offer basic outlines and domains of quality for
protocols and for education of clinicians, security personnel, and administration, as
well as of the public and legislators.
As we integrate professional and institutional standards into our programs, we need
to encourage collaboration. However, while we work together, we must also keep our
roles distinct. Prison chaplains do not perform well as jailers, and security
personnel cannot provide clinical care.
We need to discern domains of quality and not only measure conformity with standards,
but also distinguish excellent care from merely mediocre care. Measurement tools can
be embedded in institutional quality improvement programs. Dynamic corrections
requires continual improvement, and measurement allows us to use data to increase
program effectiveness and improve our discipline. Measurement also helps fiscal
accountability.
DOC administrators and managers will find hospice programs positive and
cost-effective. By providing high quality care that measurably conforms to community
standards, the correctional system also will earn some protection from legal
allegations of deficient care.
The prospect of dying inmates actually receiving not only medically competent but
genuinely compassionate, loving care seems implausible. Yet thirty-five or more
programs currently exist or are in development, most experiencing real success.
Courageous but also cautious wardens and leaders within departments of corrections
have supported them without sacrificing the priorities of detention, safety, and
security. Hospice leaders have reached out to correctional staff, sharing expertise
and resources. Clinicians caring for inmates have exhibited true professionalism in
adapting hospice to their environments. But most credit belongs to the inmate
volunteers, whose efforts and commitment are extraordinary.
Visiting with prison hospice volunteers and correctional staff has reminded me of
William Golding's classic novel, Lord of the Flies. In this story about adolescents
stranded on a remote island and stripped of the usual constraints of civilized life,
cooperation gradually gives way to competition, conflict, and aggression.
Penitentiaries are islands within our society, where isolation, anger, and hostility
abound. Choices between cooperation and conflict are made daily. Yet prison hospices
are the opposite of Golding's chaotic island.
Inmate volunteers attest the remarkable transformative effect of hospice work:
I have learned that life is precious and so is what I do with it. Life is a beautiful
gift and without the men who showed me death, I might never have learned to live....
Hospice work has opened my heart. It has given new vision. It has changed part of my
nature…. I care more for people now.
I volunteered for hospice because I saw it as an opportunity to do something positive
for someone else which in turn allows me to feel better about who I am. My motivation
now comes from what I see in a patient's eyes as I enter the room. I know that if I'm
of no value to anyone else, I am of value to him.
There are evil people in the world, and many inmates we meet have been guilty of
vicious acts. No amount of good deeds can exonerate an inmate or make up for murder
or other crimes of violence. But recognizing the presence of evil, I also recognize
where it is not. Whatever they did and however wicked they may have been in the past,
the patients and hospice volunteers I have met are far from evil now.
Clinicians do not have to reconcile issues of legal or metaphysical guilt before
caring for patients or families. Such considerations are irrelevant to the task of
caring. Genuine palliative care entails preserving the capacity of patients and
families to grow through the end of life. Prison hospice workers observe personal
qualities of openness, honesty, and tenderness in patients and volunteers.
Ironically, these are qualities associated with childhood innocence. We do not have
to reconcile philosophical or metaphysical issues of guilt and innocence to recognize
that real transformations do happen. Acceptance of this fact is distinct from issues
of legal guilt. Acknowledging genuine, positive change in an inmate does not require
society to modify his or her sentence. We can recognize people for who they are,
today, and respect and encourage their remarkable work.
Sometimes life's most profound lessons come from unexpected places. Prison hospices
programs have something important to teach. It is worth examining why, in aggressive
and predatory prison environments, inmates are choosing to work together, without
recognition or material reward, to care for one another and to build a civil
community.
Their compassion and hours of work are evidence of goodness within the human
condition where one would least expect to find it. Their commitment to one another is
a declaration of value and dignity in every human life and a vow to build a better
future right where they live. We all have something to learn from that.
Judge blasts inmate care
Judge blasts inmate care
By Beth Barrett Staff Writer
Whittier Daily News
Los Angeles County faces tens of millions of dollars in damages for bedding thousands of prisoners on mattresses on concrete floors after a federal judge tentatively ruled Monday the practice violates the constitution and is symptomatic of serious problems in the riot-plagued jail system.
U.S. District Court Judge Dean D. Pregerson said the practice pointed toward an "endemic problem" in "dysfunctional" facilities where overcrowding is commonplace.
"There is something inherently wrong with what is happening at the institution when it reaches a level where so many \ sleep on the floor," Pregerson said from the bench.
Pregerson gave lawyers for the county, and Stephen Yagman - representing inmates sleeping on floors, who he estimated at up to 300,000 - time to make additional arguments before a final ruling.
Floor sleeping was ended last September as some additional facilities were opened to provide more bunks, in addition to letting some inmates convicted of misdemeanors out early, said Marc Klugman, chief of the Correctional Services Division.
The class action lawsuit - which Yagman said could reach damages of $100 million if the ruling becomes final and more members of the class make claims - comes as the county's troubled jail system has faced a series of recent riots, mainly between African-American and Latino inmates.
Sheriff Lee Baca has announced he's looking for $300 million from the county to reopen Sybil Brand Institute, hire more deputies and to make other changes in the system to stem the violence.
Klugman said "the system was hard hit" by a string of bad budget years that forced facilities to close, adding to the overcrowding and floor sleeping.
An injunction against overcrowding in the jails, indicated by floor sleeping, has been in place for nearly three decades, and recently was redrawn to prohibit repeat floor sleeping by inmates - but has never been challenged in court.
Ramona Ripston, executive director of the American Civil Liberties Union of Southern California, applauded the ruling.
"There shouldn't be any floor sleepers," she said.
Yagman said he took the class-action case after inmates who had gotten out of jail complained of their treatment, and that the names of about 24,000 inmates were collected between May 29 and Sept. 29.
In court, he said the issue is one of "human dignity," and that floor sleeping is a "degradation of people that deprives them of their dignity," in violation of due process under the 14th Amendment.
"There has been a pattern of deliberate indifference; they throw up their hands and say, `We can't fix it,"' Yagman said. "They can't do that, they have to be responsible."
Yagman said the county could resolve much of the problem and save "a fortune" by moving convicted inmates to state prison more quickly.
Klugman denied there are transfer delays, saying state-bound inmates usually are moved within a couple of weeks.
David D. Lawrence, an outside counsel for the county, urged the judge to reconsider, arguing that "overcrowding by itself isn't unconstitutional," and that there must be corresponding findings that factors like poor health or unsafe conditions also exist.
"It's not an issue of numbers; this is the largest jail \ in the country," said Lawrence, with the firm Franscell, Strickland, Roberts & Lawrence. "It doesn't follow that because there's a lot of them, there's a single constitutional violation. I don't think the court can look at it that way."
beth.barrett@dailynews.com
By Beth Barrett Staff Writer
Whittier Daily News
Los Angeles County faces tens of millions of dollars in damages for bedding thousands of prisoners on mattresses on concrete floors after a federal judge tentatively ruled Monday the practice violates the constitution and is symptomatic of serious problems in the riot-plagued jail system.
U.S. District Court Judge Dean D. Pregerson said the practice pointed toward an "endemic problem" in "dysfunctional" facilities where overcrowding is commonplace.
"There is something inherently wrong with what is happening at the institution when it reaches a level where so many \ sleep on the floor," Pregerson said from the bench.
Pregerson gave lawyers for the county, and Stephen Yagman - representing inmates sleeping on floors, who he estimated at up to 300,000 - time to make additional arguments before a final ruling.
Floor sleeping was ended last September as some additional facilities were opened to provide more bunks, in addition to letting some inmates convicted of misdemeanors out early, said Marc Klugman, chief of the Correctional Services Division.
The class action lawsuit - which Yagman said could reach damages of $100 million if the ruling becomes final and more members of the class make claims - comes as the county's troubled jail system has faced a series of recent riots, mainly between African-American and Latino inmates.
Sheriff Lee Baca has announced he's looking for $300 million from the county to reopen Sybil Brand Institute, hire more deputies and to make other changes in the system to stem the violence.
Klugman said "the system was hard hit" by a string of bad budget years that forced facilities to close, adding to the overcrowding and floor sleeping.
An injunction against overcrowding in the jails, indicated by floor sleeping, has been in place for nearly three decades, and recently was redrawn to prohibit repeat floor sleeping by inmates - but has never been challenged in court.
Ramona Ripston, executive director of the American Civil Liberties Union of Southern California, applauded the ruling.
"There shouldn't be any floor sleepers," she said.
Yagman said he took the class-action case after inmates who had gotten out of jail complained of their treatment, and that the names of about 24,000 inmates were collected between May 29 and Sept. 29.
In court, he said the issue is one of "human dignity," and that floor sleeping is a "degradation of people that deprives them of their dignity," in violation of due process under the 14th Amendment.
"There has been a pattern of deliberate indifference; they throw up their hands and say, `We can't fix it,"' Yagman said. "They can't do that, they have to be responsible."
Yagman said the county could resolve much of the problem and save "a fortune" by moving convicted inmates to state prison more quickly.
Klugman denied there are transfer delays, saying state-bound inmates usually are moved within a couple of weeks.
David D. Lawrence, an outside counsel for the county, urged the judge to reconsider, arguing that "overcrowding by itself isn't unconstitutional," and that there must be corresponding findings that factors like poor health or unsafe conditions also exist.
"It's not an issue of numbers; this is the largest jail \ in the country," said Lawrence, with the firm Franscell, Strickland, Roberts & Lawrence. "It doesn't follow that because there's a lot of them, there's a single constitutional violation. I don't think the court can look at it that way."
beth.barrett@dailynews.com
U.S. prison industry: big business or a new form of slavery?
U.S. prison industry: big business or a new form of slavery?
by Vicky Pelaez
Activists protest the American Corrections Association prison industry trade show.
Human rights organizations, as well as political and social ones, are condemning what they are calling a new form of inhumane exploitation in the United States, where they say a prison population of up to 2 million – mostly Black and Hispanic – are working for various industries for a pittance. For the tycoons who have invested in the prison industry, it has been like finding a pot of gold.
They don’t have to worry about strikes or paying unemployment insurance, vacations or comp time. All of their workers are full-time and never arrive late or are absent because of family problems; moreover, if they don’t like the pay of 25 cents an hour and refuse to work, they are locked up in isolation cells.
There are over 2 million inmates in state, federal and private prisons throughout the country. According to California Prison Focus, “No other society in human history has imprisoned so many of its own citizens.”
The figures show that the United States has locked up more people than any other country: a half million more than China, which has a population five times greater than the U.S. Statistics reveal that the United States holds 25 percent of the world’s prison population but only 5 percent of the world’s people.
From less than 300,000 inmates in 1972, the jail population grew to 2 million by the year 2000. In 1990 it was 1 million. Ten years ago, there were only five private prisons in the country with a population of 2,000 inmates; now, there are 100, with 62,000 inmates. It is expected that by the coming decade, the number will hit 360,000, according to reports.
What has happened over the last 10 years? Why are there so many prisoners?
“The private contracting of prisoners for work fosters incentives to lock people up. Prisons depend on this income. Corporate stockholders who make money off prisoners’ work lobby for longer sentences in order to expand their workforce. The system feeds itself,” says a study by the Progressive Labor Party, which accuses the prison industry of being “an imitation of Nazi Germany with respect to forced slave labor and concentration camps.”
The prison industry complex is one of the fastest-growing industries in the United States and its investors are on Wall Street. “This multimillion-dollar industry has its own trade exhibitions, conventions, websites and mail-order and Internet catalogs. It also has direct advertising campaigns, architecture companies, construction companies, investment houses on Wall Street, plumbing supply companies, food supply companies, armed security and padded cells in a large variety of colors.”
According to the Left Business Observer, the federal prison industry produces 100 percent of all military helmets, ammunition belts, bullet-proof vests, ID tags, shirts, pants, tents, bags and canteens. Along with war supplies, prison workers supply 98 percent of the entire market for equipment assembly services; 93 percent of paints and paintbrushes; 92 percent of stove assembly; 46 percent of body armor; 36 percent of home appliances; 30 percent of headphones, microphones and speakers; and 21 percent of office furniture. Airplane parts, medical supplies and much more: prisoners are even raising seeing-eye dogs for blind people.
Crime goes down, jail population goes up
According to reports by human rights organizations, these are the factors that increase the profit potential for those who invest in the prison industry complex:
• Jailing persons convicted of non-violent crimes and long prison sentences for possession of microscopic quantities of illegal drugs. Federal law stipulates five years’ imprisonment without possibility of parole for possession of 5 grams of crack or 3.5 ounces of heroin, and 10 years for possession of less than 2 ounces of rock-cocaine or crack. A sentence of 5 years for cocaine powder requires possession of 500 grams – 100 times more than the quantity of rock cocaine for the same sentence. Most of those who use cocaine powder are white, middle-class or rich people, while mostly Blacks and Latinos use rock cocaine. In Texas, a person may be sentenced for up to two years’ imprisonment for possessing 4 ounces of marijuana. In New York, the 1973 Nelson Rockefeller anti-drug law provides for a mandatory prison sentence of 15 years to life for possession of 4 ounces of any illegal drug.
• The passage in 13 states of the “three strikes” laws (life in prison after being convicted of three felonies) made it necessary to build 20 new federal prisons. One of the most disturbing cases resulting from this measure was that of a prisoner who for stealing a car and two bicycles received three 25-year sentences.
• Longer sentences.
• The passage of laws that require minimum sentencing, without regard for circumstances.
• A large expansion of work by prisoners, creating profits that motivate the incarceration of more people for longer periods of time.
• More punishment of prisoners, so as to lengthen their sentences.
History of prison labor in the United States
Prison labor has its roots in slavery. After the 1861-1865 Civil War, a system of “hiring out prisoners” was introduced in order to continue the slavery tradition. Freed slaves were charged with not carrying out their sharecropping commitments (cultivating someone else’s land in exchange for part of the harvest) or petty thievery – which were almost never proven – and were then “hired out” for cotton picking, working in mines and building railroads.
From 1870 until 1910 in the state of Georgia, 88 percent of hired-out convicts were Black. In Alabama, 93 percent of hired-out miners were Black. In Mississippi, a huge prison farm similar to the old slave plantations replaced the system of hiring out convicts. The notorious Parchman plantation existed until 1972.
During the post-Civil War period, Jim Crow racial segregation laws were imposed on every state, with legal segregation in schools, housing, marriages and many other aspects of daily life. “Today, a new set of markedly racist laws is imposing slave labor and sweatshops on the criminal justice system, now known as the prison industry complex,” comments the Left Business Observer.
Who is investing? At least 37 states have legalized the contracting of prison labor by private corporations that mount their operations inside state prisons. The list of such companies contains the cream of U.S. corporate society: IBM, Boeing, Motorola, Microsoft, AT&T Wireless, Texas Instrument, Dell, Compaq, Honeywell, Hewlett-Packard, Nortel, Lucent Technologies, 3Com, Intel, Northern Telecom, TWA, Nordstrom’s, Revlon, Macy’s, Pierre Cardin, Target Stores and many more.
All of these businesses are excited about the economic boom generated by prison labor. Just between 1980 and 1994, profits went up from $392 million to $1.31 billion.
Inmates in state penitentiaries generally receive the minimum wage for their work, but not all; in Colorado, they get about $2 per hour, well under the minimum. And in privately-run prisons, they receive as little as 17 cents per hour for a maximum of six hours a day, the equivalent of $20 per month. The highest-paying private prison is CCA in Tennessee, where prisoners receive 50 cents per hour for what they call “highly skilled positions.”
At those rates, it is no surprise that inmates find the pay in federal prisons to be very generous. There, they can earn $1.25 an hour and work eight hours a day and sometimes overtime. They can send home $200-$300 per month.
Thanks to prison labor, the United States is once again an attractive location for investment in work that was designed for Third World labor markets. A company that operated a maquiladora (assembly plant in Mexico near the border) closed down its operations there and relocated to San Quentin State Prison in California.
In Texas, a factory fired its 150 workers and contracted the services of prisoner-workers from the private Lockhart Texas prison, where circuit boards are assembled for companies like IBM and Compaq.
Oregon state Rep. Kevin Mannix recently urged Nike to cut its production in Indonesia and bring it to his state, telling the shoe manufacturer that “there won’t be any transportation costs; we’re offering you competitive prison labor (here).”
Private prisons
The prison privatization boom began in the 1980s under the governments of Ronald Reagan and George Bush Sr. but reached its height in 1990 under William Clinton, when Wall Street stocks were selling like hotcakes. Clinton’s program for cutting the cutting the federal workforce resulted in the Justice Department’s contracting of private prison corporations for the incarceration of undocumented workers and high-security inmates.
Private prisons are the biggest business in the prison industry complex. About 18 corporations guard 10,000 prisoners in 27 states. The two largest are Correctional Corporation of America (CCA) and Wackenhut, which together control 75 percent.
Private prisons receive a guaranteed amount of money for each prisoner, independent of what it costs to maintain each one. According to Russell Boraas, a private prison administrator in Virginia, “The secret to low operating costs is having a minimal number of guards for the maximum number of prisoners.”
The CCA has an ultra-modern prison in Lawrenceville, Virginia, where five guards on dayshift and two at night watch over 750 prisoners. In these prisons, inmates may get their sentences reduced for “good behavior,” but for any infraction, they get 30 days added – which means more profits for CCA. According to a study of New Mexico prisons, it was found that CCA inmates lost “good behavior time” at a rate eight times higher than those in state prisons.
Importing and exporting inmates
Profits are so good that now there is a new business: importing inmates with long sentences, meaning the worst criminals. When a federal judge ruled that overcrowding in Texas prisons was cruel and unusual punishment, the CCA signed contracts with sheriffs in poor counties to build and run new jails and share the profits.
According to a December 1998 Atlantic Monthly magazine article, this program was backed by investors from Merrill-Lynch, Shearson-Lehman, American Express and Allstate, and the operation was scattered all over rural Texas. That state’s governor, Ann Richards, followed the example of Mario Cuomo in New York and built so many state prisons that the market became flooded, cutting into private prison profits.
After a law signed by Clinton in 1996 – ending court supervision and decisions – caused overcrowding and violent, unsafe conditions in federal prisons, private prison corporations in Texas began to contact other states whose prisons were overcrowded, offering “rent-a-cell” services in the CCA prisons located in small towns in Texas. The commission for a rent-a-cell salesman is $2.50 to $5.50 per day per bed. The county gets $1.50 for each prisoner.
Statistics
Ninety-seven percent of 125,000 federal inmates have been convicted of non-violent crimes. It is believed that more than half of the 623,000 inmates in municipal or county jails are innocent of the crimes they are accused of. Of these, the majority are awaiting trial.
Two-thirds of the one million state prisoners have committed non-violent offenses. Sixteen percent of the country’s 2 million prisoners suffer from mental illness.
by Vicky Pelaez
Activists protest the American Corrections Association prison industry trade show.
Human rights organizations, as well as political and social ones, are condemning what they are calling a new form of inhumane exploitation in the United States, where they say a prison population of up to 2 million – mostly Black and Hispanic – are working for various industries for a pittance. For the tycoons who have invested in the prison industry, it has been like finding a pot of gold.
They don’t have to worry about strikes or paying unemployment insurance, vacations or comp time. All of their workers are full-time and never arrive late or are absent because of family problems; moreover, if they don’t like the pay of 25 cents an hour and refuse to work, they are locked up in isolation cells.
There are over 2 million inmates in state, federal and private prisons throughout the country. According to California Prison Focus, “No other society in human history has imprisoned so many of its own citizens.”
The figures show that the United States has locked up more people than any other country: a half million more than China, which has a population five times greater than the U.S. Statistics reveal that the United States holds 25 percent of the world’s prison population but only 5 percent of the world’s people.
From less than 300,000 inmates in 1972, the jail population grew to 2 million by the year 2000. In 1990 it was 1 million. Ten years ago, there were only five private prisons in the country with a population of 2,000 inmates; now, there are 100, with 62,000 inmates. It is expected that by the coming decade, the number will hit 360,000, according to reports.
What has happened over the last 10 years? Why are there so many prisoners?
“The private contracting of prisoners for work fosters incentives to lock people up. Prisons depend on this income. Corporate stockholders who make money off prisoners’ work lobby for longer sentences in order to expand their workforce. The system feeds itself,” says a study by the Progressive Labor Party, which accuses the prison industry of being “an imitation of Nazi Germany with respect to forced slave labor and concentration camps.”
The prison industry complex is one of the fastest-growing industries in the United States and its investors are on Wall Street. “This multimillion-dollar industry has its own trade exhibitions, conventions, websites and mail-order and Internet catalogs. It also has direct advertising campaigns, architecture companies, construction companies, investment houses on Wall Street, plumbing supply companies, food supply companies, armed security and padded cells in a large variety of colors.”
According to the Left Business Observer, the federal prison industry produces 100 percent of all military helmets, ammunition belts, bullet-proof vests, ID tags, shirts, pants, tents, bags and canteens. Along with war supplies, prison workers supply 98 percent of the entire market for equipment assembly services; 93 percent of paints and paintbrushes; 92 percent of stove assembly; 46 percent of body armor; 36 percent of home appliances; 30 percent of headphones, microphones and speakers; and 21 percent of office furniture. Airplane parts, medical supplies and much more: prisoners are even raising seeing-eye dogs for blind people.
Crime goes down, jail population goes up
According to reports by human rights organizations, these are the factors that increase the profit potential for those who invest in the prison industry complex:
• Jailing persons convicted of non-violent crimes and long prison sentences for possession of microscopic quantities of illegal drugs. Federal law stipulates five years’ imprisonment without possibility of parole for possession of 5 grams of crack or 3.5 ounces of heroin, and 10 years for possession of less than 2 ounces of rock-cocaine or crack. A sentence of 5 years for cocaine powder requires possession of 500 grams – 100 times more than the quantity of rock cocaine for the same sentence. Most of those who use cocaine powder are white, middle-class or rich people, while mostly Blacks and Latinos use rock cocaine. In Texas, a person may be sentenced for up to two years’ imprisonment for possessing 4 ounces of marijuana. In New York, the 1973 Nelson Rockefeller anti-drug law provides for a mandatory prison sentence of 15 years to life for possession of 4 ounces of any illegal drug.
• The passage in 13 states of the “three strikes” laws (life in prison after being convicted of three felonies) made it necessary to build 20 new federal prisons. One of the most disturbing cases resulting from this measure was that of a prisoner who for stealing a car and two bicycles received three 25-year sentences.
• Longer sentences.
• The passage of laws that require minimum sentencing, without regard for circumstances.
• A large expansion of work by prisoners, creating profits that motivate the incarceration of more people for longer periods of time.
• More punishment of prisoners, so as to lengthen their sentences.
History of prison labor in the United States
Prison labor has its roots in slavery. After the 1861-1865 Civil War, a system of “hiring out prisoners” was introduced in order to continue the slavery tradition. Freed slaves were charged with not carrying out their sharecropping commitments (cultivating someone else’s land in exchange for part of the harvest) or petty thievery – which were almost never proven – and were then “hired out” for cotton picking, working in mines and building railroads.
From 1870 until 1910 in the state of Georgia, 88 percent of hired-out convicts were Black. In Alabama, 93 percent of hired-out miners were Black. In Mississippi, a huge prison farm similar to the old slave plantations replaced the system of hiring out convicts. The notorious Parchman plantation existed until 1972.
During the post-Civil War period, Jim Crow racial segregation laws were imposed on every state, with legal segregation in schools, housing, marriages and many other aspects of daily life. “Today, a new set of markedly racist laws is imposing slave labor and sweatshops on the criminal justice system, now known as the prison industry complex,” comments the Left Business Observer.
Who is investing? At least 37 states have legalized the contracting of prison labor by private corporations that mount their operations inside state prisons. The list of such companies contains the cream of U.S. corporate society: IBM, Boeing, Motorola, Microsoft, AT&T Wireless, Texas Instrument, Dell, Compaq, Honeywell, Hewlett-Packard, Nortel, Lucent Technologies, 3Com, Intel, Northern Telecom, TWA, Nordstrom’s, Revlon, Macy’s, Pierre Cardin, Target Stores and many more.
All of these businesses are excited about the economic boom generated by prison labor. Just between 1980 and 1994, profits went up from $392 million to $1.31 billion.
Inmates in state penitentiaries generally receive the minimum wage for their work, but not all; in Colorado, they get about $2 per hour, well under the minimum. And in privately-run prisons, they receive as little as 17 cents per hour for a maximum of six hours a day, the equivalent of $20 per month. The highest-paying private prison is CCA in Tennessee, where prisoners receive 50 cents per hour for what they call “highly skilled positions.”
At those rates, it is no surprise that inmates find the pay in federal prisons to be very generous. There, they can earn $1.25 an hour and work eight hours a day and sometimes overtime. They can send home $200-$300 per month.
Thanks to prison labor, the United States is once again an attractive location for investment in work that was designed for Third World labor markets. A company that operated a maquiladora (assembly plant in Mexico near the border) closed down its operations there and relocated to San Quentin State Prison in California.
In Texas, a factory fired its 150 workers and contracted the services of prisoner-workers from the private Lockhart Texas prison, where circuit boards are assembled for companies like IBM and Compaq.
Oregon state Rep. Kevin Mannix recently urged Nike to cut its production in Indonesia and bring it to his state, telling the shoe manufacturer that “there won’t be any transportation costs; we’re offering you competitive prison labor (here).”
Private prisons
The prison privatization boom began in the 1980s under the governments of Ronald Reagan and George Bush Sr. but reached its height in 1990 under William Clinton, when Wall Street stocks were selling like hotcakes. Clinton’s program for cutting the cutting the federal workforce resulted in the Justice Department’s contracting of private prison corporations for the incarceration of undocumented workers and high-security inmates.
Private prisons are the biggest business in the prison industry complex. About 18 corporations guard 10,000 prisoners in 27 states. The two largest are Correctional Corporation of America (CCA) and Wackenhut, which together control 75 percent.
Private prisons receive a guaranteed amount of money for each prisoner, independent of what it costs to maintain each one. According to Russell Boraas, a private prison administrator in Virginia, “The secret to low operating costs is having a minimal number of guards for the maximum number of prisoners.”
The CCA has an ultra-modern prison in Lawrenceville, Virginia, where five guards on dayshift and two at night watch over 750 prisoners. In these prisons, inmates may get their sentences reduced for “good behavior,” but for any infraction, they get 30 days added – which means more profits for CCA. According to a study of New Mexico prisons, it was found that CCA inmates lost “good behavior time” at a rate eight times higher than those in state prisons.
Importing and exporting inmates
Profits are so good that now there is a new business: importing inmates with long sentences, meaning the worst criminals. When a federal judge ruled that overcrowding in Texas prisons was cruel and unusual punishment, the CCA signed contracts with sheriffs in poor counties to build and run new jails and share the profits.
According to a December 1998 Atlantic Monthly magazine article, this program was backed by investors from Merrill-Lynch, Shearson-Lehman, American Express and Allstate, and the operation was scattered all over rural Texas. That state’s governor, Ann Richards, followed the example of Mario Cuomo in New York and built so many state prisons that the market became flooded, cutting into private prison profits.
After a law signed by Clinton in 1996 – ending court supervision and decisions – caused overcrowding and violent, unsafe conditions in federal prisons, private prison corporations in Texas began to contact other states whose prisons were overcrowded, offering “rent-a-cell” services in the CCA prisons located in small towns in Texas. The commission for a rent-a-cell salesman is $2.50 to $5.50 per day per bed. The county gets $1.50 for each prisoner.
Statistics
Ninety-seven percent of 125,000 federal inmates have been convicted of non-violent crimes. It is believed that more than half of the 623,000 inmates in municipal or county jails are innocent of the crimes they are accused of. Of these, the majority are awaiting trial.
Two-thirds of the one million state prisoners have committed non-violent offenses. Sixteen percent of the country’s 2 million prisoners suffer from mental illness.
Prison reform needs reform
Prison reform needs reform
Corrections system can't do task alone
- Mark Martin, Chronicle Sacramento Bureau
Sacramento -- When Roderick Hickman abruptly quit his job as California's top prisons official last month, a chorus of critics chided him for bungling the effort to turn around one of the nation's most dysfunctional law enforcement agencies.
In two years on the job, Hickman had infuriated nearly everyone involved in state corrections. The politically potent prison guards union charged that violence inside prisons had risen under his watch and ridiculed him almost daily on an Internet blog popular with prison employees. Inmate advocates, meanwhile, suggested Hickman said all the right things about reforming the system but ignored basic problems -- one lawyer noted that while Hickman organized a bureaucratic revamping of the department that included a name change, doctors at San Quentin State Prison went without a sink to wash their hands in between seeing patients.
But the consensus that Hickman failed to enact real change misses a key point that illustrates problems both with California's prisons and its politics. To truly fix what's broken behind bars in this state, experts say that the governor and Legislature -- not the head of the corrections system -- need to take action.
"In essence, we're blaming the wrong person for the prison problem," argues Joan Petersilia, a nationally-known corrections expert at UC Irvine. "Prison reform can't really happen inside prisons."
Scholars such as Petersilia who have studied California's overcrowded, $8 billion corrections system have repeatedly concluded that many of the system's troubles stem from poorly thought out criminal justice policies.
Sentencing laws enacted more than 30 years ago, and repeatedly described as a failure, require nothing of inmates, who sit in cells or on yards instead of entering drug treatment or vocational education programs. Corrections administrators have little power to determine when an inmate is truly ready to leave prison, and that results in the daily release of dangerous people back into the neighborhoods they previously terrorized. Overburdened parole agents are required to monitor virtually every parolee, leaving the agents little time to concentrate on the parolees most likely to pose a threat to citizens. That has resulted in this shocking fact: More than 20,000 California parolees are unaccounted for on any given day.
"The decision of who should come out, when they come out and how they are controlled while they are out is not really determined by corrections officials," said Petersilia, who recently finished a lengthy report detailing problems with the state's prisons. "All of those decisions are made by legislators and the body politic."
And many scholars say lawmakers continue to make bad decisions based more on headlines and emotional pleas than on a growing body of data that suggests how states can run cost efficient and effective prisons and parole systems.
Petersilia noted that instead of major policy reforms enacted in other states that have cut costs and not upped crime rates, California lawmakers continue to enact piecemeal changes to the criminal justice system. That approach is sometimes referred to as "drive-by policymaking." Between 1984 and 1991, for example, California lawmakers and governors enacted more than 1,000 crime bills imposing new charges, sentences and parole policies.
Rarely are costs -- or studies showing effectiveness -- considered. The results make working in the state's penal system difficult and contribute to parolees churning in and out of jam-packed prisons.
Officials with the state's prison guards union said one law enacted last year by Gov. Arnold Schwarzenegger that restricts where some sex offenders can live has been a nightmare for parole agents, who struggle to place parolees.
Another recent law stripped parole agents of any discretion when a felon convicted of two strikes violates any condition of parole: he or she is automatically sent back to prison for a short stint behind bars instead of allowing the agent and other corrections officials to determine if some other program, such as substance abuse treatment, might be better.
No policy has been attacked more repeatedly than the state's main sentencing law, yet there has been little will in Sacramento to change it.
Enacted by then-Gov. Jerry Brown in 1976, the so-called determinate sentencing reform required judges to implement predetermined sentences for most crimes. It was a radical change. Most inmates previously had been given undetermined sentences and then, before securing their release, were required to prove to parole officials that they had worked in prison to change their habits.
Now inmates know when they enter the system exactly when they'll get out. Even if the state's corrections officials launched an initiative to create scores of new programs inside prisons, inmates could simply ignore them and do their time.
"A guy knows he'll get out, and he doesn't really have to try and do anything to turn his life around," said Lance Corcoran, an executive with the prison guards union.
Even Brown called determinate sentencing "an abysmal failure" when speaking in 2003 to the state's Little Hoover Commission, and numerous studies -- including one commissioned by Schwarzenegger in 2004 -- have called for change. Corcoran also said "determinate sentencing needs to be looked at."
To understand how the sentencing law impacts public safety, look no further than Richard Allen Davis.
Davis became the poster child for the state's three strikes law in 1993 when he kidnapped and killed Petaluma's Polly Klaas. But he is also a symbol for problems with sentencing.
Before the Klaas case and before the sentencing law was changed, Davis had been in prison and was denied release on parole six times. Under the new sentencing law, Davis had to be released after a predetermined time, regardless of whether anyone felt he was ready. He kidnapped Klaas four months after leaving prison.
In the late 1970s and 1980s, scores of states around the country followed California's lead in rewriting sentencing laws. But virtually all of them have rewritten those laws during the last decade, according to Petersilia. Thirty-five states now give parole boards significant powers to decide who should get out, which she contends can change prison culture.
Not California.
In Sacramento, policymakers have flirted with creating a sentencing commission to revamp the state's laws, but no group was formed.
The study commissioned by Schwarzenegger -- which was chaired by former Gov. George Deukmejian -- suggested adapting a sentencing reform that would allow a judge to impose a minimum term and a maximum term. Corrections officials would allow an inmate out after serving the minimum term if the inmate completed programs designed to help steer him away from crime.
Schwarzenegger has never mentioned that reform.
The problem, many prison reformers believe, is a combination of the emotions attached to crime issues and the difficulty a polarized Capitol has in enacting any kind of thoughtful reforms.
Few in Sacramento, for example, would argue that the state's educational funding law, Proposition 98, isn't overly complex and in need of change, but debates over that devolve into disputes about whether lawmakers are for or against children.
Criminal justice issues descend to the same lowest common denominator.
Democratic Assemblyman Mark Leno of San Francisco was attacked earlier this year as a danger to society by some Republicans for opposing a ballot initiative that would shuttle virtually all sex offenders to rural areas, rather than cities. These new requirements on where offenders can live are based on scant evidence of any real benefit to public safety.
"There's no compelling reason for a sensible debate," noted Dan Macallair, executive director of the San Francisco Center on Juvenile and Criminal Justice. "Crime issues seem to do little else in Sacramento but attract political posturing."
E-mail Mark Martin at markmartin@sfchronicle.com.
Corrections system can't do task alone
- Mark Martin, Chronicle Sacramento Bureau
Sacramento -- When Roderick Hickman abruptly quit his job as California's top prisons official last month, a chorus of critics chided him for bungling the effort to turn around one of the nation's most dysfunctional law enforcement agencies.
In two years on the job, Hickman had infuriated nearly everyone involved in state corrections. The politically potent prison guards union charged that violence inside prisons had risen under his watch and ridiculed him almost daily on an Internet blog popular with prison employees. Inmate advocates, meanwhile, suggested Hickman said all the right things about reforming the system but ignored basic problems -- one lawyer noted that while Hickman organized a bureaucratic revamping of the department that included a name change, doctors at San Quentin State Prison went without a sink to wash their hands in between seeing patients.
But the consensus that Hickman failed to enact real change misses a key point that illustrates problems both with California's prisons and its politics. To truly fix what's broken behind bars in this state, experts say that the governor and Legislature -- not the head of the corrections system -- need to take action.
"In essence, we're blaming the wrong person for the prison problem," argues Joan Petersilia, a nationally-known corrections expert at UC Irvine. "Prison reform can't really happen inside prisons."
Scholars such as Petersilia who have studied California's overcrowded, $8 billion corrections system have repeatedly concluded that many of the system's troubles stem from poorly thought out criminal justice policies.
Sentencing laws enacted more than 30 years ago, and repeatedly described as a failure, require nothing of inmates, who sit in cells or on yards instead of entering drug treatment or vocational education programs. Corrections administrators have little power to determine when an inmate is truly ready to leave prison, and that results in the daily release of dangerous people back into the neighborhoods they previously terrorized. Overburdened parole agents are required to monitor virtually every parolee, leaving the agents little time to concentrate on the parolees most likely to pose a threat to citizens. That has resulted in this shocking fact: More than 20,000 California parolees are unaccounted for on any given day.
"The decision of who should come out, when they come out and how they are controlled while they are out is not really determined by corrections officials," said Petersilia, who recently finished a lengthy report detailing problems with the state's prisons. "All of those decisions are made by legislators and the body politic."
And many scholars say lawmakers continue to make bad decisions based more on headlines and emotional pleas than on a growing body of data that suggests how states can run cost efficient and effective prisons and parole systems.
Petersilia noted that instead of major policy reforms enacted in other states that have cut costs and not upped crime rates, California lawmakers continue to enact piecemeal changes to the criminal justice system. That approach is sometimes referred to as "drive-by policymaking." Between 1984 and 1991, for example, California lawmakers and governors enacted more than 1,000 crime bills imposing new charges, sentences and parole policies.
Rarely are costs -- or studies showing effectiveness -- considered. The results make working in the state's penal system difficult and contribute to parolees churning in and out of jam-packed prisons.
Officials with the state's prison guards union said one law enacted last year by Gov. Arnold Schwarzenegger that restricts where some sex offenders can live has been a nightmare for parole agents, who struggle to place parolees.
Another recent law stripped parole agents of any discretion when a felon convicted of two strikes violates any condition of parole: he or she is automatically sent back to prison for a short stint behind bars instead of allowing the agent and other corrections officials to determine if some other program, such as substance abuse treatment, might be better.
No policy has been attacked more repeatedly than the state's main sentencing law, yet there has been little will in Sacramento to change it.
Enacted by then-Gov. Jerry Brown in 1976, the so-called determinate sentencing reform required judges to implement predetermined sentences for most crimes. It was a radical change. Most inmates previously had been given undetermined sentences and then, before securing their release, were required to prove to parole officials that they had worked in prison to change their habits.
Now inmates know when they enter the system exactly when they'll get out. Even if the state's corrections officials launched an initiative to create scores of new programs inside prisons, inmates could simply ignore them and do their time.
"A guy knows he'll get out, and he doesn't really have to try and do anything to turn his life around," said Lance Corcoran, an executive with the prison guards union.
Even Brown called determinate sentencing "an abysmal failure" when speaking in 2003 to the state's Little Hoover Commission, and numerous studies -- including one commissioned by Schwarzenegger in 2004 -- have called for change. Corcoran also said "determinate sentencing needs to be looked at."
To understand how the sentencing law impacts public safety, look no further than Richard Allen Davis.
Davis became the poster child for the state's three strikes law in 1993 when he kidnapped and killed Petaluma's Polly Klaas. But he is also a symbol for problems with sentencing.
Before the Klaas case and before the sentencing law was changed, Davis had been in prison and was denied release on parole six times. Under the new sentencing law, Davis had to be released after a predetermined time, regardless of whether anyone felt he was ready. He kidnapped Klaas four months after leaving prison.
In the late 1970s and 1980s, scores of states around the country followed California's lead in rewriting sentencing laws. But virtually all of them have rewritten those laws during the last decade, according to Petersilia. Thirty-five states now give parole boards significant powers to decide who should get out, which she contends can change prison culture.
Not California.
In Sacramento, policymakers have flirted with creating a sentencing commission to revamp the state's laws, but no group was formed.
The study commissioned by Schwarzenegger -- which was chaired by former Gov. George Deukmejian -- suggested adapting a sentencing reform that would allow a judge to impose a minimum term and a maximum term. Corrections officials would allow an inmate out after serving the minimum term if the inmate completed programs designed to help steer him away from crime.
Schwarzenegger has never mentioned that reform.
The problem, many prison reformers believe, is a combination of the emotions attached to crime issues and the difficulty a polarized Capitol has in enacting any kind of thoughtful reforms.
Few in Sacramento, for example, would argue that the state's educational funding law, Proposition 98, isn't overly complex and in need of change, but debates over that devolve into disputes about whether lawmakers are for or against children.
Criminal justice issues descend to the same lowest common denominator.
Democratic Assemblyman Mark Leno of San Francisco was attacked earlier this year as a danger to society by some Republicans for opposing a ballot initiative that would shuttle virtually all sex offenders to rural areas, rather than cities. These new requirements on where offenders can live are based on scant evidence of any real benefit to public safety.
"There's no compelling reason for a sensible debate," noted Dan Macallair, executive director of the San Francisco Center on Juvenile and Criminal Justice. "Crime issues seem to do little else in Sacramento but attract political posturing."
E-mail Mark Martin at markmartin@sfchronicle.com.
Prison futures
Prison futures
The last quarter century has seen a more than fivefold increase in the state’s prison population. Reforms are under way, but they won’t do much good if we fail to amend three-strikes laws and minimum drug-sentencing codes.
By Sasha Abramsky
Illustration By Carl DeTorres
Last week, Rod Hickman, head of California’s sprawling, and troubled, correctional system, stunned his colleagues by announcing that he intended to submit his resignation to the governor. Hickman’s decision was extraordinary not, per se, because he was leaving the correctional scene, but because of his rationale.
Mandated by Governor Arnold Schwarzenegger to reform what was widely acknowledged to be a “broken” prison system, Director Hickman was supposed to rein in brutality, to bring the role of rehabilitation back to the fore and to make flexible a bureaucracy notorious for its rigidity. His resignation was an acknowledgement that the political will simply wasn’t there to successfully reform the Youth and Adult Correctional Agency (YACA), the coordinating body in charge of juvenile and adult corrections as well as probation and parole services in the state.
For two years now, Hickman and his team of reformers have been trying to fix the “culture” of a system responsible for housing--and, hopefully, rehabilitating-- somewhere in the region of 167,000 Californians sentenced to time behind bars for their criminal activities. The reformers’ efforts were intended to counter the ideas, promoted by posturing political leaders over two-plus decades, that growth in the prison system was good in and of itself; that building more prisons and making harsher the conditions inside those prisons, that incarcerating more teenagers and sending back to prison more parolees on violations of their parole, were the be-all-and-end-all of criminal justice; and, perhaps most importantly, that “rehabilitation” implied being soft on criminals in an era when the public wanted “hard” policies.
The reformers have been working in often difficult conditions, trying to navigate waters roiled by contradictory messages sent out by an electorate fearful of crime yet hostile to business-as-usual approaches. Add to that a governor and legislators looking to reform the system while still preserving their macho criminal-justice credentials, despite plenty of evidence that old “tough on crime” policies such as the state’s “three strikes, and you’re out” law were simply gumming up the works of the bloated system.
At the end of the day, perhaps, the odds against Hickman succeeding were simply too long. He had been trying to change how “success” within corrections was measured, against a political backdrop in which many politicians were still arguing that rehabilitation was something akin to a dirty word.
In fact, efforts to reform the existing system beg a key question: Why go to great lengths to humanize a system that continues to lock up, often for decades at a stretch, tens of thousands of relatively low-end offenders under three-strikes laws and mandatory-minimum drug-sentencing codes?
Clearly, reform is needed. But, absent a good, hard look at the sentencing policies themselves--at the practices that have led to a more than fivefold increase in the state’s prison population in a quarter century--reform could, paradoxically, simply make a bad system more palatable. And, in the long run, this helps neither the many thousands of prisoners sentenced to long periods behind bars for low-end crimes nor the taxpayers who are footing the bills for keeping these men and women incarcerated.
Macho criminal-justice credentials
While some political figures have begun to recognize the seriousness of California’s over-incarceration problem and the futility of policies that have the effect of endlessly cycling offenders between prison and parole, amazingly, some are proposing making the system even larger.
“So, you say that there are too many people in jail. Well, I ask you, who do you want to let out?” state Senator Chuck Poochigian asked of his opponents, before an enthusiastic gathering of Republican students in a lecture room at UC Davis in late January.
Mandated by Governor Schwarzenegger to reform a "broken" prison system, Youth and Adult Correctional Agency (YACA) Director Rod Hickman stunned his colleagues last week when he announced that he’d be leaving the job. He told reporters that "the political will simply wasn’t there" to successfully reform the state’s prisons.
Two months earlier, a year after California’s voters voted down Proposition 66 and kept undiluted the state’s “three strikes” law, Poochigian had begun arguing that the law wasn’t tough enough.
Three strikes allows for a 25-years-to-life sentence to be imposed on anybody with two serious crimes in his or her past convicted of any third felony. Not included in the list of qualifying “serious” offenses is car theft. In a series of opinion pieces and speeches before campus audiences, the Fresno Republican, serving as chair of the Public Safety Committee and running hard for his party’s nomination to be the state’s next attorney general, argued that the best way to deal with the Central Valley’s epidemic levels of car theft was to redefine the crime as serious and violent. Such a technical maneuver would allow car-theft convictions to count as first- and second-strike offenses in the eyes of the law and would show, he argued, that California was finally getting tough about a crime long allotted a low priority by law enforcement and legislators alike.
“Bad guys lured by light penalties for auto theft,” ran the somewhat lurid headline of a Poochigian op-ed in the November 8 issue of The Modesto Bee.
The politician wrote: “In 1994, the 'three strikes’ initiative designated burglary as a 'strike,’ meaning it could carry a sentence of 25 years to life. Car theft is not a strike. The bad guys noticed. Since 1999, criminals have made vehicle theft the fastest growing felony reported in the California Crime Index. In 2003, car thefts surpassed burglaries for the first time in the 52 years that statistics had been kept.”
None of this should be a surprise. Poochigian rose up the Republican ranks during the Deukmejian and Wilson governorships, during a time when a surefire route to political success was to out-tough one’s opponents on the issue of crime and punishment.
Poochigian appears to have taken these lessons to heart. He was elected to the state Assembly in 1994--shortly after fellow Fresno resident Mike Reynolds had succeeded in getting voters to back the three-strikes ballot initiative--and four years later, he became a senator for the 14th district. In the years since then, he has made a name for himself as a hardworking, glad-handing senator.
He also has established a solid reputation as an across-the-board conservative. Poochigian has steadfastly opposed raising California’s minimum wage; voted against expanded environmental protections and increased access to health-insurance programs; and curried the favor of the National Rifle Association. And, through continuously touting tough-on-crime measures, he got himself selected in 2000 as Outstanding Senator by the California State Sheriff’s Association.
In his capacity as chair of the Public Safety Committee, the 56-year-old Poochigian has argued for stronger sanctions against gang members, for an expansion of the network of local jails in California and for the hiring of more law-enforcement personnel throughout the state. At the same time, he has looked to block progressive changes to the state’s method of dealing with drug offenders, vocally opposing Proposition 36 and other attempts to divert low-end offenders into non-prison environments. In 2002, the Drug Policy Forum of California awarded the senator a grade F for his approach to drugs.
Despite repeated requests for interviews, made to both his Sacramento and his Fresno offices, Poochigian did not make himself available for comments during the reporting of this article. But it seems clear that, in the months since he began floating the notion of expanding three strikes, Poochigian--his nomination as a Republican candidate in the attorney general’s race virtually assured by a series of high-profile endorsements, and his need to win over conservative primary voters thus reduced--has gone notably cold on the issue. His staff asserts, somewhat improbably, that in fact he never formally proposed changing the law. Talk of a November 2006 ballot initiative to expand three strikes has died down, although conservative bloggers in the region are still touting this idea; Poochigian himself has stopped stumping for his pet cause, likely fearing he would be painted as an extremist in an election year in which he needs to win over moderates if he is to stand a chance of becoming the next attorney general.
Yet, the op-eds and the speeches about toughening up three strikes are now part of the public record. And should Poochigian end up in a scrap for his political life at some point down the road, he can, like his onetime mentor Pete Wilson, always trot out the old canard that he’s been tougher on crime than his opponents and has the track record to prove it.
Former San Quentin Warden Jeanne Woodford has been tapped to serve as interim director of YACA. "People will measure our success by our ability to lower the recidivism rate," she said.
The guts to limit three strikes
Four hundred miles south of the state capital, Los Angeles District Attorney Steve Cooley is busy arguing something altogether different from the ideas floated by the chair of the Public Safety Committee. Yes, Cooley agrees, car theft is a serious crime and arguably should be dealt with in a harsher manner than is currently the case. So, too, says Cooley, is another of Poochigian’s bugbears: identity theft. But expanding the three-strikes net to include damaging crimes such as these is not the answer.
In fact, Cooley won election in 2000 at least in part because L.A.’s electorate was disillusioned with the catchall three-strikes prosecutions engaged in by his predecessor, Gil Garcetti. Shortly after winning office, Cooley issued a special directive that limited third-strike prosecutions in his jurisdiction to cases in which the third offense was serious or violent, thus hoping to end a string of embarrassments in which L.A. prosecutors had put people in prison for the rest of their lives for shoplifting, stealing pizza slices, forging checks or possessing minuscule amounts of drugs.
Now, in the wake of Proposition 66’s defeat, Cooley is looking to rein in three strikes, limiting the application of the 25-years-to-life sentences to those convicted of violent third strikes or to defendants whose previous crimes were heinous enough to have made them eligible for either the death penalty or a life sentence.
Cooley, who is pushing for a ballot initiative this coming November that would limit three-strikes prosecutions statewide in a similar way to that he set in place in Los Angeles, argues that handing out third-strike penalties for lower-end crimes is not only disproportionate, but, because of the costs of incarcerating two-bit offenders for decades in high-security prisons, also is scaring the Legislature away from defining new crimes as felonies. “You have a skittish legislature,” the district attorney explained. “Not willing to pass appropriate laws making certain conduct felonious--such as the possession of kiddie porn. This is the price the public is paying because of a general legislative sense they don’t want any more felonies serving as the basis for 25-years-to-life sentences.”
As a result, crimes that need to be taken seriously are being ignored, and criminals who are a genuine threat to public safety and to the well-being of others are getting off with no prison time because of the all-or-nothing equation built into three strikes. At the same time, large numbers of relatively minor offenders are slated to spend the rest of their lives behind bars because they already have been convicted under the three-strikes provision. It is the quintessence of a dysfunctional system.
“My proposal,” said Cooley, “would eliminate many not serious, not violent felonies from being predicate felonies for 25-years-to-life and would hopefully assuage that [legislative] skittishness. We’ll eliminate an impediment for the Legislature to not make certain offenses felonies.” It also, he asserts, would allow the courts to tackle the increasing problems of car theft and identity theft by letting judges impose longer sentences on such offenders without the convictions counting toward a subsequent third-strike penalty. “The solution to grand theft auto is not to make it a strike.” So, what might work to reduce this problem? “Putting more resources into the investigation and apprehension of auto thieves might be more effective, increasing the certainty of being caught.”
What it takes to change a system
If the three-strikes clash were occurring in isolation from other changes within the state’s vast criminal-justice infrastructure, it might be possible to ignore it, to brush it off as old-hat. But, in fact, the battle for the future of three strikes, embodied by Cooley wanting to restrict its scope and Poochigian and his supporters wanting to expand its application, is taking place against a backdrop of startling bureaucratic overhauls in the state’s prison, parole and juvenile systems. It’s also happening amid raucous behind-the-scenes arguments about the prison system’s orientation, or, more broadly, about the purpose of incarceration in a democratic society.
Hickman’s resignation--and the implication that all the good work may yet come to naught--has helped push these issues into the public eye.
In fact, for two years now, the central question in California’s correctional circles has been how to make a “broken” system--one primed for violence because of the number of prisoners who feel they have little to lose by acting out--function better.
California has approximately 167,000 prisoners. This is slightly smaller than the Federal Bureau of Prisons’ population, roughly on a par with the prison population of Texas and orders of magnitude larger than the incarcerated population of the other 48 states. Yet, too often the prisons seem little more than flophouses for the given-up-on and the hopeless. The state returns parolees to prison more frequently than does any other state, with approximately 70,000 prison admissions per year for parole violations, suggesting correctional facilities are utterly failing to convert their residents into law-abiding citizens.
State Senator Chuck Poochigian, who rose up the Republican ranks during the Deukmejian and Wilson governorships, has argued that the three-strikes law isn’t tough enough. He’s now a GOP candidate in the race for state attorney general.
In 2004, Governor Schwarzenegger and Director Hickman began a concerted effort to change the way in which the huge system--with an annual budget of more than $5 billion--was managed. Their objective was to create a prison system that actually rehabilitated its occupants, rather than simply warehousing them, returning them to the community and then providing them with a cell again when they screwed up.
To do this, Hickman and Schwarzenegger knew they would have to tackle the prison-guards union, which had become a central, and deeply conservative, player in the state’s political process. They also would have to grapple with a correctional culture in which scandals were, and continue to be, a dime a dozen: After allegations of abuse and a rash of self-mutilations, suicides and murders, the Supermax at Pelican Bay (one of a handful of super-maximum-security institutions opened up from the late 1980s onward) was ordered by a judge to remove seriously mentally ill inmates into a special unit; and in Corcoran, guards were found to have organized gladiatorial combats between members of rival prison gangs and then to have shot the fighters apart on the prison yard. Most recently, the youth authority’s institutions have come under the spotlight because of a series of wantonly violent guard responses against troubled teenagers, the system’s health-care services have been ruled unconstitutional by a federal court, and the parole system has been denounced by the courts for huge backlogs in reviewing prisoners’ parole applications.
Put bluntly, by the early part of the century, California’s correctional system had devolved into an overpopulated modern-day bedlam.
“We had to reorganize to get to the cultural change, to get to the results we wanted,” Hickman said, raising his large hands for emphasis, as we talked at the end of a day of hearings held by the national Commission on Safety and Abuse in America’s Prisons, at Loyola Marymount University in Los Angeles. It was two weeks before his stunning resignation announcement.
In a black pinstriped suit, a pressed white shirt and a purple tie, Hickman looked every bit the ambitious corporate executive. Why the need for cultural change? Well, the director explained in a deadpan tone, in 2004 the reformers were faced with “the code of silence, the potential indictment of a former director, issues in regards to use of force, budgeting problems, ethical and fiscal issues that existed.” A commission headed by former Governor Deukmejian had come up with no fewer than 239 recommendations for reforming the system, chief among which was to restructure the bureaucracy and to bring back the notion of basing correctional decisions upon solid, well-researched evidence.
“When people say we’ve failed,” Hickman argued, “the failure is a question of expectation. California had high recidivism rates, but it was never designed to rehabilitate. It was designed to incarcerate. There’s a huge number of prisoners in California that do a short amount of time. They cycle through, and we have to break that cycle.” In other words, the state was good at keeping people in prison and fairly useless at helping them turn their lives around.
At Schwarzenegger’s urging, in 2005 the Department of Corrections was renamed the Department of Corrections and Rehabilitation--a symbolic change important in a state whose leadership earlier had declared rehabilitation no longer one of the prison system’s functions. To back up this change, a multimillion-dollar research wing, headed by parole and re-entry specialist Joan Petersilia of the University of California, Irvine, was established to study which programs worked to lower recidivism rates. Sometime in the next year, pilot programs will kick in at a few select institutions, designed to test some of the new methods identified by Petersilia and her team as likely to be useful.
Also, funding for the state inspector general’s office was reformulated. In the past, the office was given a fixed budget, regardless of how few or how many allegations of abuse it investigated. Clearly, this created a disincentive for its officials to go out of their way to look into potential problems. Under the new formula, in contrast, more money is channeled the office’s way the more cases of possible abuse within state institutions it decides to investigate, reversing the incentive structure. “The inspector general’s office has a golden key,” Matthew Cate, Schwarzenegger’s hire for the job, told the Commission on Safety and Abuse in America’s Prisons.
Cate, a large man with a chiseled jaw and short, gelled-back brown hair, told the blue-ribbon panel that he had been appointed, in the wake of years of prison-abuse scandals, to “rigorously audit and investigate, and to be transparent in everything we did. We can go into any prison at any time and ask to speak to any inmate and ask for all documents.” And, he continued combatively, “if my people go to all the troubles to bring a problem to light, then you damn well better fix it, or I’m going to embarrass you.”
In an attempt to cement the cultural changes within California corrections, a new director, then-San Quentin Warden Jeanne Woodford, was tapped to head the state’s prison system. “Even in our low-end prisons,” Woodford stated when I interviewed her in the summer of 2005 for a book that I was researching, “we’ve had these sorts of roving riots. We still have problems with street-gang issues in the prisons. My overall philosophy is these inmates return to their communities--95 percent will parole. It’s getting those communities involved in their prison and re-entry experiences.”
Los Angeles District Attorney Steve Cooley is pushing for a ballot initiative this coming November that would limit three-strikes prosecutions so that third-strike penalties aren’t handed down for lower-end crimes such as shoplifting and possessing minuscule amounts of drugs.
What is needed, explained Woodford--who, following Hickman’s departure, has been appointed interim director of YACA--is better re-entry planning so that prisoners are better prepared for the free world; better aftercare for ex-inmates with drug problems; and an increased reliance on community volunteers coming into prisons to help educate, counsel and treat angry, illiterate, addicted prisoners. “We will be held accountable for our ability to appropriately transition people home. People will measure our success by our ability to lower the recidivism rate. We want to begin preparing our inmates for parole the minute they come in our door.”
Finally, to complete the picture, Alan Glassman, a top-tier management consultant from California State University, Northridge, was signed on to put together a comprehensive strategy to reform the entire correctional bureaucracy.
Glassman, a feisty man with a sparkle in his eyes, salt-and-pepper hair and a striking resemblance to the comic actor Mel Brooks, hired a team of outside experts and, over the course of 18 months, from early 2004 through late 2005, fundamentally redesigned the management of California’s correctional system. Glassman’s team looked to create structures that would provide incentives for inmates to enroll in education, drug treatment and vocational-training programs and that would force prison wardens and their staffs to take such programming seriously.
There was, Glassman explained over a large sandwich in a San Fernando Valley deli, an “acceptance [by top correctional personnel] that there was a burning platform and that their job wasn’t to put out the fire, but to build a new platform. My only words for it, we had a lot of swirl. It’s very rare. You don’t [often] get the coming together of new leadership committed to transformational change with the support of a new governor for that change and a promise by the governor to blow up the boxes.” “We can no longer do business the way we did it in the past,” Glassman recalled YACA chief Hickman telling a meeting of senior prison managers in 2004.
But, as Hickman has now realized, blowing up boxes can be a lot tougher than it sounds.
167,000 and counting
For the first time in a quarter century, California has a governor who seems genuinely committed to restoring the good name of corrections in the state; to reining in the California Correctional Peace Officers Association; and to making a good-faith effort to improve conditions in a system that has become infamous for abuse scandals, cronyism and rampant violence.
Whether the reforms will amount to anything, however, won’t be known for many years. “In my world, there are several areas of change you play with all the time, culture being a major one,” Glassman explained. “Estimates are it takes seven to 12 years to change the culture of a major organization.” In the meantime, as the recent federal court decision to place the prison system’s dysfunctional health-care services under the control of the courts indicates, and as Hickman’s departure confirms, the reformers have a long row to hoe.
Succeed or fail, though, all of this effort doesn’t answer a fundamental question: Why are we spending a ton of money to humanize a system that continues to lock up, often for decades at a stretch, low-end offenders who could be served best by either short prison sentences or structured alternatives to incarceration, such as community service or mandated drug treatment? In fact, do the exact conditions of confinement really matter, at the end of the day, to a three-striker serving life on a low-end drug crime, when it is the absurdity of the sentence itself that is the fundamental injustice?
Take Dan Johnson, for example. Johnson was a trained sheet-metal worker and also a longtime cocaine addict. In the 1970s and 1980s, he was arrested numerous times on relatively minor drug charges, and in the late 1980s, he was convicted on several robbery charges, robberies of gas stations committed to fund his out-of-control drug use. Ironically, he spent only a couple of years in prison for the robberies--a spree that easily could have spiraled into violence against the victims and that only ended when one of the gas-station attendants shot Johnson through the neck. Yet, years later, when he was arrested in San Juan Capistrano with a small quantity of cocaine and paraphernalia suggesting he was intending to sell the drugs, it was the minor drug charge that proved the catalyst for a three-strikes sentence.
In 1994, Johnson was one of the first Orange County residents convicted under the new three-strikes law. He was found guilty on three separate drug charges and was sentenced to 75-years-to-life behind bars (a sentence later reduced to a mere 28-years-to-life).
Does it matter how Dan Johnson, and others like him, are incarcerated? Well, on one level, yes. Obviously, in addition to the simple human-rights arguments in favor of non-abusive living environments, it’s in the state’s best interests to keep the prison conditions reasonable so as to minimize the risk of disgruntled inmates rioting and to reduce the risk of endless prisoner lawsuits. But the bigger story is that a court has told a person such as Johnson that, because the people have spoken in their continued support for three strikes, he likely will never experience freedom again.
Moreover, beyond the thousands of three-strikes convicts, because of the ways in which the war on drugs and the general toughening up of sentencing laws have played out in recent years, tens of thousands of Californians continue to be incarcerated for years and decades at a stretch for crimes that, in another time and another place, would not have been dealt with through prolonged imprisonment. A generation ago--after nearly a century during which the nation’s incarceration rate, and that of individual states, had stayed roughly constant, at somewhere between 110 and 150 prisoners per 100,000 residents--California’s prisons housed fewer than 30,000 inmates. Today almost six times that number of Californians live behind bars.
Were Poochigian’s proposal to take root, and were California’s prisons to see an influx of three-strikes inmates destined to spend the rest of their lives behind bars for stealing cars, that question would become even more pertinent. Who benefits when the wrong people are permanently removed from free society? How does incarcerating a 19-year-old joy rider into the latter part of the 21st century make California a better or, indeed, safer place? And how do taxpayers gain when vast efforts are then expended on mitigating these people’s unreasonable prison sentences by, at great cost, improving the quality of their incarceration experiences by providing them with better health care, more responsive guards and a more flexible bureaucracy governing the prisons within which they are held?
The bureaucratic reforms now taking place in California’s correctional system are long overdue and, despite Hickman’s pessimistic departure from the scene, quite possibly will succeed in making a brutal culture marginally less brutal and significantly more empathetic. Yet, at the end of the day, they are only one part of the equation. The other, finding ways to scale back the size of California’s prison population to more historically reasonable proportions--as measured by earlier incarceration trends in the state and the country as a whole and also by comparing America’s incarceration rate to that of other industrial democracies--has been largely ignored by the governor and Legislature alike.
And, if the proposals floated by supporters of Poochigian, a man with hopes of becoming the state’s top legal officer, take off in opposition to the three-strikes reforms touted by Steve Cooley, it will become even harder to halt the seemingly endless growth in California’s gulag archipelago.
The last quarter century has seen a more than fivefold increase in the state’s prison population. Reforms are under way, but they won’t do much good if we fail to amend three-strikes laws and minimum drug-sentencing codes.
By Sasha Abramsky
Illustration By Carl DeTorres
Last week, Rod Hickman, head of California’s sprawling, and troubled, correctional system, stunned his colleagues by announcing that he intended to submit his resignation to the governor. Hickman’s decision was extraordinary not, per se, because he was leaving the correctional scene, but because of his rationale.
Mandated by Governor Arnold Schwarzenegger to reform what was widely acknowledged to be a “broken” prison system, Director Hickman was supposed to rein in brutality, to bring the role of rehabilitation back to the fore and to make flexible a bureaucracy notorious for its rigidity. His resignation was an acknowledgement that the political will simply wasn’t there to successfully reform the Youth and Adult Correctional Agency (YACA), the coordinating body in charge of juvenile and adult corrections as well as probation and parole services in the state.
For two years now, Hickman and his team of reformers have been trying to fix the “culture” of a system responsible for housing--and, hopefully, rehabilitating-- somewhere in the region of 167,000 Californians sentenced to time behind bars for their criminal activities. The reformers’ efforts were intended to counter the ideas, promoted by posturing political leaders over two-plus decades, that growth in the prison system was good in and of itself; that building more prisons and making harsher the conditions inside those prisons, that incarcerating more teenagers and sending back to prison more parolees on violations of their parole, were the be-all-and-end-all of criminal justice; and, perhaps most importantly, that “rehabilitation” implied being soft on criminals in an era when the public wanted “hard” policies.
The reformers have been working in often difficult conditions, trying to navigate waters roiled by contradictory messages sent out by an electorate fearful of crime yet hostile to business-as-usual approaches. Add to that a governor and legislators looking to reform the system while still preserving their macho criminal-justice credentials, despite plenty of evidence that old “tough on crime” policies such as the state’s “three strikes, and you’re out” law were simply gumming up the works of the bloated system.
At the end of the day, perhaps, the odds against Hickman succeeding were simply too long. He had been trying to change how “success” within corrections was measured, against a political backdrop in which many politicians were still arguing that rehabilitation was something akin to a dirty word.
In fact, efforts to reform the existing system beg a key question: Why go to great lengths to humanize a system that continues to lock up, often for decades at a stretch, tens of thousands of relatively low-end offenders under three-strikes laws and mandatory-minimum drug-sentencing codes?
Clearly, reform is needed. But, absent a good, hard look at the sentencing policies themselves--at the practices that have led to a more than fivefold increase in the state’s prison population in a quarter century--reform could, paradoxically, simply make a bad system more palatable. And, in the long run, this helps neither the many thousands of prisoners sentenced to long periods behind bars for low-end crimes nor the taxpayers who are footing the bills for keeping these men and women incarcerated.
Macho criminal-justice credentials
While some political figures have begun to recognize the seriousness of California’s over-incarceration problem and the futility of policies that have the effect of endlessly cycling offenders between prison and parole, amazingly, some are proposing making the system even larger.
“So, you say that there are too many people in jail. Well, I ask you, who do you want to let out?” state Senator Chuck Poochigian asked of his opponents, before an enthusiastic gathering of Republican students in a lecture room at UC Davis in late January.
Mandated by Governor Schwarzenegger to reform a "broken" prison system, Youth and Adult Correctional Agency (YACA) Director Rod Hickman stunned his colleagues last week when he announced that he’d be leaving the job. He told reporters that "the political will simply wasn’t there" to successfully reform the state’s prisons.
Two months earlier, a year after California’s voters voted down Proposition 66 and kept undiluted the state’s “three strikes” law, Poochigian had begun arguing that the law wasn’t tough enough.
Three strikes allows for a 25-years-to-life sentence to be imposed on anybody with two serious crimes in his or her past convicted of any third felony. Not included in the list of qualifying “serious” offenses is car theft. In a series of opinion pieces and speeches before campus audiences, the Fresno Republican, serving as chair of the Public Safety Committee and running hard for his party’s nomination to be the state’s next attorney general, argued that the best way to deal with the Central Valley’s epidemic levels of car theft was to redefine the crime as serious and violent. Such a technical maneuver would allow car-theft convictions to count as first- and second-strike offenses in the eyes of the law and would show, he argued, that California was finally getting tough about a crime long allotted a low priority by law enforcement and legislators alike.
“Bad guys lured by light penalties for auto theft,” ran the somewhat lurid headline of a Poochigian op-ed in the November 8 issue of The Modesto Bee.
The politician wrote: “In 1994, the 'three strikes’ initiative designated burglary as a 'strike,’ meaning it could carry a sentence of 25 years to life. Car theft is not a strike. The bad guys noticed. Since 1999, criminals have made vehicle theft the fastest growing felony reported in the California Crime Index. In 2003, car thefts surpassed burglaries for the first time in the 52 years that statistics had been kept.”
None of this should be a surprise. Poochigian rose up the Republican ranks during the Deukmejian and Wilson governorships, during a time when a surefire route to political success was to out-tough one’s opponents on the issue of crime and punishment.
Poochigian appears to have taken these lessons to heart. He was elected to the state Assembly in 1994--shortly after fellow Fresno resident Mike Reynolds had succeeded in getting voters to back the three-strikes ballot initiative--and four years later, he became a senator for the 14th district. In the years since then, he has made a name for himself as a hardworking, glad-handing senator.
He also has established a solid reputation as an across-the-board conservative. Poochigian has steadfastly opposed raising California’s minimum wage; voted against expanded environmental protections and increased access to health-insurance programs; and curried the favor of the National Rifle Association. And, through continuously touting tough-on-crime measures, he got himself selected in 2000 as Outstanding Senator by the California State Sheriff’s Association.
In his capacity as chair of the Public Safety Committee, the 56-year-old Poochigian has argued for stronger sanctions against gang members, for an expansion of the network of local jails in California and for the hiring of more law-enforcement personnel throughout the state. At the same time, he has looked to block progressive changes to the state’s method of dealing with drug offenders, vocally opposing Proposition 36 and other attempts to divert low-end offenders into non-prison environments. In 2002, the Drug Policy Forum of California awarded the senator a grade F for his approach to drugs.
Despite repeated requests for interviews, made to both his Sacramento and his Fresno offices, Poochigian did not make himself available for comments during the reporting of this article. But it seems clear that, in the months since he began floating the notion of expanding three strikes, Poochigian--his nomination as a Republican candidate in the attorney general’s race virtually assured by a series of high-profile endorsements, and his need to win over conservative primary voters thus reduced--has gone notably cold on the issue. His staff asserts, somewhat improbably, that in fact he never formally proposed changing the law. Talk of a November 2006 ballot initiative to expand three strikes has died down, although conservative bloggers in the region are still touting this idea; Poochigian himself has stopped stumping for his pet cause, likely fearing he would be painted as an extremist in an election year in which he needs to win over moderates if he is to stand a chance of becoming the next attorney general.
Yet, the op-eds and the speeches about toughening up three strikes are now part of the public record. And should Poochigian end up in a scrap for his political life at some point down the road, he can, like his onetime mentor Pete Wilson, always trot out the old canard that he’s been tougher on crime than his opponents and has the track record to prove it.
Former San Quentin Warden Jeanne Woodford has been tapped to serve as interim director of YACA. "People will measure our success by our ability to lower the recidivism rate," she said.
The guts to limit three strikes
Four hundred miles south of the state capital, Los Angeles District Attorney Steve Cooley is busy arguing something altogether different from the ideas floated by the chair of the Public Safety Committee. Yes, Cooley agrees, car theft is a serious crime and arguably should be dealt with in a harsher manner than is currently the case. So, too, says Cooley, is another of Poochigian’s bugbears: identity theft. But expanding the three-strikes net to include damaging crimes such as these is not the answer.
In fact, Cooley won election in 2000 at least in part because L.A.’s electorate was disillusioned with the catchall three-strikes prosecutions engaged in by his predecessor, Gil Garcetti. Shortly after winning office, Cooley issued a special directive that limited third-strike prosecutions in his jurisdiction to cases in which the third offense was serious or violent, thus hoping to end a string of embarrassments in which L.A. prosecutors had put people in prison for the rest of their lives for shoplifting, stealing pizza slices, forging checks or possessing minuscule amounts of drugs.
Now, in the wake of Proposition 66’s defeat, Cooley is looking to rein in three strikes, limiting the application of the 25-years-to-life sentences to those convicted of violent third strikes or to defendants whose previous crimes were heinous enough to have made them eligible for either the death penalty or a life sentence.
Cooley, who is pushing for a ballot initiative this coming November that would limit three-strikes prosecutions statewide in a similar way to that he set in place in Los Angeles, argues that handing out third-strike penalties for lower-end crimes is not only disproportionate, but, because of the costs of incarcerating two-bit offenders for decades in high-security prisons, also is scaring the Legislature away from defining new crimes as felonies. “You have a skittish legislature,” the district attorney explained. “Not willing to pass appropriate laws making certain conduct felonious--such as the possession of kiddie porn. This is the price the public is paying because of a general legislative sense they don’t want any more felonies serving as the basis for 25-years-to-life sentences.”
As a result, crimes that need to be taken seriously are being ignored, and criminals who are a genuine threat to public safety and to the well-being of others are getting off with no prison time because of the all-or-nothing equation built into three strikes. At the same time, large numbers of relatively minor offenders are slated to spend the rest of their lives behind bars because they already have been convicted under the three-strikes provision. It is the quintessence of a dysfunctional system.
“My proposal,” said Cooley, “would eliminate many not serious, not violent felonies from being predicate felonies for 25-years-to-life and would hopefully assuage that [legislative] skittishness. We’ll eliminate an impediment for the Legislature to not make certain offenses felonies.” It also, he asserts, would allow the courts to tackle the increasing problems of car theft and identity theft by letting judges impose longer sentences on such offenders without the convictions counting toward a subsequent third-strike penalty. “The solution to grand theft auto is not to make it a strike.” So, what might work to reduce this problem? “Putting more resources into the investigation and apprehension of auto thieves might be more effective, increasing the certainty of being caught.”
What it takes to change a system
If the three-strikes clash were occurring in isolation from other changes within the state’s vast criminal-justice infrastructure, it might be possible to ignore it, to brush it off as old-hat. But, in fact, the battle for the future of three strikes, embodied by Cooley wanting to restrict its scope and Poochigian and his supporters wanting to expand its application, is taking place against a backdrop of startling bureaucratic overhauls in the state’s prison, parole and juvenile systems. It’s also happening amid raucous behind-the-scenes arguments about the prison system’s orientation, or, more broadly, about the purpose of incarceration in a democratic society.
Hickman’s resignation--and the implication that all the good work may yet come to naught--has helped push these issues into the public eye.
In fact, for two years now, the central question in California’s correctional circles has been how to make a “broken” system--one primed for violence because of the number of prisoners who feel they have little to lose by acting out--function better.
California has approximately 167,000 prisoners. This is slightly smaller than the Federal Bureau of Prisons’ population, roughly on a par with the prison population of Texas and orders of magnitude larger than the incarcerated population of the other 48 states. Yet, too often the prisons seem little more than flophouses for the given-up-on and the hopeless. The state returns parolees to prison more frequently than does any other state, with approximately 70,000 prison admissions per year for parole violations, suggesting correctional facilities are utterly failing to convert their residents into law-abiding citizens.
State Senator Chuck Poochigian, who rose up the Republican ranks during the Deukmejian and Wilson governorships, has argued that the three-strikes law isn’t tough enough. He’s now a GOP candidate in the race for state attorney general.
In 2004, Governor Schwarzenegger and Director Hickman began a concerted effort to change the way in which the huge system--with an annual budget of more than $5 billion--was managed. Their objective was to create a prison system that actually rehabilitated its occupants, rather than simply warehousing them, returning them to the community and then providing them with a cell again when they screwed up.
To do this, Hickman and Schwarzenegger knew they would have to tackle the prison-guards union, which had become a central, and deeply conservative, player in the state’s political process. They also would have to grapple with a correctional culture in which scandals were, and continue to be, a dime a dozen: After allegations of abuse and a rash of self-mutilations, suicides and murders, the Supermax at Pelican Bay (one of a handful of super-maximum-security institutions opened up from the late 1980s onward) was ordered by a judge to remove seriously mentally ill inmates into a special unit; and in Corcoran, guards were found to have organized gladiatorial combats between members of rival prison gangs and then to have shot the fighters apart on the prison yard. Most recently, the youth authority’s institutions have come under the spotlight because of a series of wantonly violent guard responses against troubled teenagers, the system’s health-care services have been ruled unconstitutional by a federal court, and the parole system has been denounced by the courts for huge backlogs in reviewing prisoners’ parole applications.
Put bluntly, by the early part of the century, California’s correctional system had devolved into an overpopulated modern-day bedlam.
“We had to reorganize to get to the cultural change, to get to the results we wanted,” Hickman said, raising his large hands for emphasis, as we talked at the end of a day of hearings held by the national Commission on Safety and Abuse in America’s Prisons, at Loyola Marymount University in Los Angeles. It was two weeks before his stunning resignation announcement.
In a black pinstriped suit, a pressed white shirt and a purple tie, Hickman looked every bit the ambitious corporate executive. Why the need for cultural change? Well, the director explained in a deadpan tone, in 2004 the reformers were faced with “the code of silence, the potential indictment of a former director, issues in regards to use of force, budgeting problems, ethical and fiscal issues that existed.” A commission headed by former Governor Deukmejian had come up with no fewer than 239 recommendations for reforming the system, chief among which was to restructure the bureaucracy and to bring back the notion of basing correctional decisions upon solid, well-researched evidence.
“When people say we’ve failed,” Hickman argued, “the failure is a question of expectation. California had high recidivism rates, but it was never designed to rehabilitate. It was designed to incarcerate. There’s a huge number of prisoners in California that do a short amount of time. They cycle through, and we have to break that cycle.” In other words, the state was good at keeping people in prison and fairly useless at helping them turn their lives around.
At Schwarzenegger’s urging, in 2005 the Department of Corrections was renamed the Department of Corrections and Rehabilitation--a symbolic change important in a state whose leadership earlier had declared rehabilitation no longer one of the prison system’s functions. To back up this change, a multimillion-dollar research wing, headed by parole and re-entry specialist Joan Petersilia of the University of California, Irvine, was established to study which programs worked to lower recidivism rates. Sometime in the next year, pilot programs will kick in at a few select institutions, designed to test some of the new methods identified by Petersilia and her team as likely to be useful.
Also, funding for the state inspector general’s office was reformulated. In the past, the office was given a fixed budget, regardless of how few or how many allegations of abuse it investigated. Clearly, this created a disincentive for its officials to go out of their way to look into potential problems. Under the new formula, in contrast, more money is channeled the office’s way the more cases of possible abuse within state institutions it decides to investigate, reversing the incentive structure. “The inspector general’s office has a golden key,” Matthew Cate, Schwarzenegger’s hire for the job, told the Commission on Safety and Abuse in America’s Prisons.
Cate, a large man with a chiseled jaw and short, gelled-back brown hair, told the blue-ribbon panel that he had been appointed, in the wake of years of prison-abuse scandals, to “rigorously audit and investigate, and to be transparent in everything we did. We can go into any prison at any time and ask to speak to any inmate and ask for all documents.” And, he continued combatively, “if my people go to all the troubles to bring a problem to light, then you damn well better fix it, or I’m going to embarrass you.”
In an attempt to cement the cultural changes within California corrections, a new director, then-San Quentin Warden Jeanne Woodford, was tapped to head the state’s prison system. “Even in our low-end prisons,” Woodford stated when I interviewed her in the summer of 2005 for a book that I was researching, “we’ve had these sorts of roving riots. We still have problems with street-gang issues in the prisons. My overall philosophy is these inmates return to their communities--95 percent will parole. It’s getting those communities involved in their prison and re-entry experiences.”
Los Angeles District Attorney Steve Cooley is pushing for a ballot initiative this coming November that would limit three-strikes prosecutions so that third-strike penalties aren’t handed down for lower-end crimes such as shoplifting and possessing minuscule amounts of drugs.
What is needed, explained Woodford--who, following Hickman’s departure, has been appointed interim director of YACA--is better re-entry planning so that prisoners are better prepared for the free world; better aftercare for ex-inmates with drug problems; and an increased reliance on community volunteers coming into prisons to help educate, counsel and treat angry, illiterate, addicted prisoners. “We will be held accountable for our ability to appropriately transition people home. People will measure our success by our ability to lower the recidivism rate. We want to begin preparing our inmates for parole the minute they come in our door.”
Finally, to complete the picture, Alan Glassman, a top-tier management consultant from California State University, Northridge, was signed on to put together a comprehensive strategy to reform the entire correctional bureaucracy.
Glassman, a feisty man with a sparkle in his eyes, salt-and-pepper hair and a striking resemblance to the comic actor Mel Brooks, hired a team of outside experts and, over the course of 18 months, from early 2004 through late 2005, fundamentally redesigned the management of California’s correctional system. Glassman’s team looked to create structures that would provide incentives for inmates to enroll in education, drug treatment and vocational-training programs and that would force prison wardens and their staffs to take such programming seriously.
There was, Glassman explained over a large sandwich in a San Fernando Valley deli, an “acceptance [by top correctional personnel] that there was a burning platform and that their job wasn’t to put out the fire, but to build a new platform. My only words for it, we had a lot of swirl. It’s very rare. You don’t [often] get the coming together of new leadership committed to transformational change with the support of a new governor for that change and a promise by the governor to blow up the boxes.” “We can no longer do business the way we did it in the past,” Glassman recalled YACA chief Hickman telling a meeting of senior prison managers in 2004.
But, as Hickman has now realized, blowing up boxes can be a lot tougher than it sounds.
167,000 and counting
For the first time in a quarter century, California has a governor who seems genuinely committed to restoring the good name of corrections in the state; to reining in the California Correctional Peace Officers Association; and to making a good-faith effort to improve conditions in a system that has become infamous for abuse scandals, cronyism and rampant violence.
Whether the reforms will amount to anything, however, won’t be known for many years. “In my world, there are several areas of change you play with all the time, culture being a major one,” Glassman explained. “Estimates are it takes seven to 12 years to change the culture of a major organization.” In the meantime, as the recent federal court decision to place the prison system’s dysfunctional health-care services under the control of the courts indicates, and as Hickman’s departure confirms, the reformers have a long row to hoe.
Succeed or fail, though, all of this effort doesn’t answer a fundamental question: Why are we spending a ton of money to humanize a system that continues to lock up, often for decades at a stretch, low-end offenders who could be served best by either short prison sentences or structured alternatives to incarceration, such as community service or mandated drug treatment? In fact, do the exact conditions of confinement really matter, at the end of the day, to a three-striker serving life on a low-end drug crime, when it is the absurdity of the sentence itself that is the fundamental injustice?
Take Dan Johnson, for example. Johnson was a trained sheet-metal worker and also a longtime cocaine addict. In the 1970s and 1980s, he was arrested numerous times on relatively minor drug charges, and in the late 1980s, he was convicted on several robbery charges, robberies of gas stations committed to fund his out-of-control drug use. Ironically, he spent only a couple of years in prison for the robberies--a spree that easily could have spiraled into violence against the victims and that only ended when one of the gas-station attendants shot Johnson through the neck. Yet, years later, when he was arrested in San Juan Capistrano with a small quantity of cocaine and paraphernalia suggesting he was intending to sell the drugs, it was the minor drug charge that proved the catalyst for a three-strikes sentence.
In 1994, Johnson was one of the first Orange County residents convicted under the new three-strikes law. He was found guilty on three separate drug charges and was sentenced to 75-years-to-life behind bars (a sentence later reduced to a mere 28-years-to-life).
Does it matter how Dan Johnson, and others like him, are incarcerated? Well, on one level, yes. Obviously, in addition to the simple human-rights arguments in favor of non-abusive living environments, it’s in the state’s best interests to keep the prison conditions reasonable so as to minimize the risk of disgruntled inmates rioting and to reduce the risk of endless prisoner lawsuits. But the bigger story is that a court has told a person such as Johnson that, because the people have spoken in their continued support for three strikes, he likely will never experience freedom again.
Moreover, beyond the thousands of three-strikes convicts, because of the ways in which the war on drugs and the general toughening up of sentencing laws have played out in recent years, tens of thousands of Californians continue to be incarcerated for years and decades at a stretch for crimes that, in another time and another place, would not have been dealt with through prolonged imprisonment. A generation ago--after nearly a century during which the nation’s incarceration rate, and that of individual states, had stayed roughly constant, at somewhere between 110 and 150 prisoners per 100,000 residents--California’s prisons housed fewer than 30,000 inmates. Today almost six times that number of Californians live behind bars.
Were Poochigian’s proposal to take root, and were California’s prisons to see an influx of three-strikes inmates destined to spend the rest of their lives behind bars for stealing cars, that question would become even more pertinent. Who benefits when the wrong people are permanently removed from free society? How does incarcerating a 19-year-old joy rider into the latter part of the 21st century make California a better or, indeed, safer place? And how do taxpayers gain when vast efforts are then expended on mitigating these people’s unreasonable prison sentences by, at great cost, improving the quality of their incarceration experiences by providing them with better health care, more responsive guards and a more flexible bureaucracy governing the prisons within which they are held?
The bureaucratic reforms now taking place in California’s correctional system are long overdue and, despite Hickman’s pessimistic departure from the scene, quite possibly will succeed in making a brutal culture marginally less brutal and significantly more empathetic. Yet, at the end of the day, they are only one part of the equation. The other, finding ways to scale back the size of California’s prison population to more historically reasonable proportions--as measured by earlier incarceration trends in the state and the country as a whole and also by comparing America’s incarceration rate to that of other industrial democracies--has been largely ignored by the governor and Legislature alike.
And, if the proposals floated by supporters of Poochigian, a man with hopes of becoming the state’s top legal officer, take off in opposition to the three-strikes reforms touted by Steve Cooley, it will become even harder to halt the seemingly endless growth in California’s gulag archipelago.
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