As goes California . . .

© KAHH 2009

As California’s prison crisis comes to a head, people fear the sudden release of tens of thousands of prisoners and they rail against the release of criminals before the expiration of their sentences. With a prison population of more than 166,000 crammed into facilities designed for half as many people, California is treating its prisoners inhumanely. But you need not take my word for it. A federal court found that on average, every week one California prisoner dies a preventable death for lack of adequate medical attention.* The court found that such conditions violate the United States Constitution, our contract to limit the power of government over the lives and property of its citizens. Specifically, the court found California’s prison system inflicts “cruel and unusual punishment” of the kind prohibited by the 8th Amendment. That means the state knowingly or indifferently inflicts unnecessary pain, suffering, and death without penological purpose. That is simply intolerable in a free, civilized society. So the federal court ordered the state to develop a plan to reduce the prison population. The mandated reduction is modest – it would not limit the prison population to the number of people for which the prison system was designed. Instead, the federal court ordered the alleviation of crowding from 190% of capacity to no more than 137.5%. That will mean the release of some 40,000 prisoners over a two-year period if ordinary rates of admissions and releases are constant and no new facilities are brought on-line.

In response to this federal court order, the California legislature boldly ducked. In a courageous half-measure, a bill was introduced that would have resulted in the release of about 27,000 prisoners. But alas, the bill was eviscerated and ultimately rejected in a legislative peak of parochial pride. Lacking the fortitude to demonstrate actual leadership, legislators howled protests of heavy-handed intrusion by the federal government, claiming that the state can take care of its own corrections system, all evidence to the contrary. (No one ever lost an election by decrying crime and demanding ever harsher sentences, but an incident in which a single parolee commits a violent crime can quickly end a life-long career of public service – witness Willy Horton and disappointed presidential candidate Michael Dukakis, former governor of Massachusetts.)

California’s independent-minded Governor, Arnold Schwarzenegger, and Corrections Secretary Matthew Cates arguably have the authority to develop and submit a plan that complies with the federal court’s order. However, the news wires report that they will not do so, in defiance of the three-judge court.** Ironically, these and other state officials could find themselves in prison for contempt of court as a result. (The court also has the option to send them back to the drawing board – which would seem to be an exercise in futility – or it can devise and order the implementation of its own plan to reduce the prison population.)

But the state’s leaders are spoiling for a fight on principles as old as the republic. What power has the federal government over a state? This question has been answered definitively as recently as the early ‘60’s when the federal government forced implementation of school desegregation ordered by the United States Supreme Court in Brown v. Board of Education.*** It is well established, and an ineluctable conclusion of reasoned deliberation that federal law must take precedence over the laws of the individual states. It is the cohesion produced by the supremacy of federal law that makes ours a nation instead of a confederation.

So, having demonstrated that the state is wholly incapable of operating its prison system in a safe, humane manner, California wishes to pick a fight with the federal government on grounds that it simply cannot win. But that’s OK. Waging the battle will buy time and cost less (in the short-term) than immediate obedience to the order of the court. And there’s always a chance that a conservative Supreme Court will find fault with the way the lower court has dealt with the case. What matter that prisoners continue to suffer and die in the interim?

It hardly needs to be said that California’s leaders are acting irresponsibly, in violation of law, and with deliberate indifference to the health or safety of more than 166,000 people. But they’re clear on the other side of the country, some 2,000 miles from the Triangle Region of North Carolina. So what do we care about California’s misguided public policy and spineless leadership?

Here’s why we care. California is a harbinger of what lies ahead for the entire nation if we continue existing criminal justice policy. California’s crisis is the result of muddle-headed thinking about the purposes of a criminal justice system, political demagoguery for personal advancement, and inadequate funding to support the draconian laws enacted by the state’s legislature and its citizens. Would that California were unique in these respects.

When we incarcerate people for petty offenses and trifling conduct which we disapprove, we not only deprive them of liberty and virtually ensure that they will never be permitted to rejoin our society as respected, responsible citizens. We rob ourselves of the talents and contributions that might otherwise help to meet the challenges of our time, and those that lie ahead. We deplete public coffers of much-needed revenue in a wasteful, destructive spiral of reckless ruination. We fail to offer help to people who may suffer from mental illness, substance addiction, or who simply lack the skills to lead productive, law-abiding lives. We cheat victims out of any meaningful chance to recover restitution. We decimate neighborhoods, destroy families, and leave children without parents. And the outcomes we achieve with this “lock ‘em up” policy are shameful, with more than 60% of offenders going back to prison within three years.

How long would it be before you replaced a car that failed to start 60% of the time? If your employer routinely paid only 40% of your wages, how hard would it be to figure out you need a new job? Can it be anything other than irrational fear and hatred that cloud our judgement when we see a criminal justice system that fails to meet even the most rudimentary objectives of an ordered society?

But three-strikes laws, mandatory minimum sentences that strip jurists of the discretion they need to do justice, the criminalization of relatively harmless private conduct, the enactment of laws based upon the crime “du jour” (check your local listings – the headlines), and the incarceration of people who have committed no violence all lead to a prison population that exceeds any other in the world, whether measured in absolute numbers or as a percentage of the population. In fact, though the U.S. has only about 5% of the world’s population, 25% of the world’s prisoners are incarcerated in the land of the free, home of the brave. We’d do much better pouring our money down a rat hole.

So the woes and travails that the citizens of California must confront will soon overtake us all if we fail to recognize our folly. We must reform our criminal justice system. That reform should begin with a re-examination of the reasons for the criminal laws on the books and whether their cost justifies their enforcement. (As I understand it, law enforcement agencies across the U.S. expend nearly a trillion dollars annually to uphold laws that many officers see as misguided and ineffective.) We should take another look at why we punish criminal conduct, what we hope to achieve, and whether existing mechanisms get us where we want to go. And we should carefully assess whether incarceration should be a first response or a last resort. (We spend about $900 million dollars each year to incarcerate 2.4 million people, and correctional professionals agree that sum is inadequate to operate correctional facilities properly.)

While we’re at it, we should consider whether any set of circumstances and societal forces can justifiably lead us to incarcerate 13 and 14 year-old children for the rest of their lives without the possibility of parole. And we should consider whether isolating people for months or years in 8’x10’ cells without human interaction and virtually without stimuli can possibly have other than horrific consequences.

We should consider these things carefully, if not to ensure that we treat each other with basic human decency, if not to make prudent use of scarce public resources, and if not because it is in our own financial and societal interest to do so, then at least because it is required by fundamental notions of an ordered society and the law of the land. And we should do so immediately because, at least in this case, as goes California, so goes the nation.

* Coleman v. Schwarzenegger, ____ F.3d ____, slip op. (E.D.CA & N.D.CA, 4 August 2009)(three-judge panel). 

** Update - The plan submitted by the Governor and the Secretary of Correction on 18 September 2009 proposes to release 18,212 prisoners in the next 2 years. An alternative plan would increase the number to 23,312 over 2 years, substantially short of the roughly 40,000 required by the court’s order. The plan proposes to achieve that reduction over a 5-year period by adding 2,500 prisoners to the 8,000 already being housed out-of-state; by requiring county jails to retain more offenders; by relying more heavily on private, for-profit prisons; and by exporting some 600 undocumented aliens eligible for deportation.

*** 347 U.S. 483 (1954).

How North Carolina addressed these issues with significant success:

"Yes: It Works Well in North Carolina," Dean Thomas W. Ross

(Sacramento Bee, sacbee.com (27 September 2009)

www.HamdenConsulting.com