Today: Attica Uprising Anniversary

Today is the 40th anniversary of the Attica prison uprising. The New York Times features a nice opinion piece by Heather Ann Thompson highlighting the importance of this event.

In 1997, the inmates were awarded damages for the many violations of their civil rights and, though the state fought that judgment, in 2000 it had to pay out a settlement of $8 million. In 2005, the state reached a settlement with the guards and other workers for $12 million. The vast majority of the inmates and guards got far less than they deserved.

Despite having to pay damages, 40 years later, the State of New York still has not taken responsibility for Attica. It has never admitted that it used excessive force. It has never acknowledged that its troopers killed inmates and guards. It has never admitted that those who surrendered were tortured, nor that employees were misled.

We have all paid a very high price for the state’s lies and half-truths and its refusal to investigate and prosecute its own. The portrayal of prisoners as incorrigible animals contributed to a distrust of prisoners; the erosion of hard-won prison reforms; and the modern era of mass incarceration. Not coincidentally, it was Rockefeller who, in 1973, signed the law establishing mandatory prison terms for possession or sale of relatively small amounts of drugs, which became a model for similar legislation elsewhere.

This is particularly timely and poignant in light of the renewal of the Pelican Bay hunger strike.

And today at 7pm, a restored version of the 1974 film Attica will be shown at 518 Valencia St.

More details here.

Pelican Bay Hunger Strike: Volunteers Needed

As we reported a short while ago, plans are in place for the Pelican Bay inmate hunger strike to resume as of September 26. Volunteers are needed to travel to Pelican Bay (in Crescent City, CA) to visit hunger strikers in the coming weeks. The trip takes three days- and legal visits are conducted between Tuesday and Friday.

More background on the strike here.

If you are interested contact Marilyn McMahon, at, for an email with details.

Fees for Inmate Visits in Arizona?

Here’s a twist on the cost savings angle that left me stunned and speechless this morning: The Arizona Department of Corrections plans on charging $25 for visiting inmates in its correctional institutions.

Yes, I know. I had to do a double-take as well. But here it is, large as life, in the New York Times:

New legislation allows the department to impose a $25 fee on adults who wish to visit inmates at any of the 15 prison complexes that house state prisoners. The one-time “background check fee” for visitors, believed to be the first of its kind in the nation, has angered prisoner advocacy groups and family members of inmates, who in many cases already shoulder the expense of traveling long distances to the remote areas where many prisons are located.

Beyond the obvious commentary – what a mind-boggling limitation on the budget of already impoverished families and friends of inmates, what an imposition on top of travel to distant locations, what a hindrance to rehabilitation and reentry by way of alienating inmates from their support system – this makes one think of Mona Lynch’s excellent Sunbelt Justice, which we reviewed here a while ago. Arizona has always been big on doing things on the tough-and-cheap. Like Texas, and unlike California, Arizona prisons were originally fashioned like farms and produced revenue based on inmate labor; both Texas and Arizona correctional officials used to mock the cumbersome, expensive rehabilitative apparatus ran in California.

Of course, since those days, the Arizona apparatus has grown large and cumbersome, and as opposed to California, very much enmeshed with Correctional Corporation of America. But the heritage is still there, which explains how the legislature can even come up with such ideas. As disturbing as the state of incarceration is in California, I doubt our legislators would initiate this idea. Mass hysteria, unmitigated punitivism, case-specific sentencing laws following redball crimes, yes. Cynical savings of this ilk, no.  

Activist Humonetarianism: Californians United for a Responsible Budget

More on utilizing the cost argument to fight for the cause of prison reform: Californians United for a Responsible Budget are an Oakland-based organization formed in 2003 to fight overcrowding. Among their activities is fierce opposition to AB 900 and staunch support of SB 9.

I really recommend spending some time on the CURB website. It’s a prime example of marshaling the cost argument as the rhetorical spearhead in the fight against overcrowding.

Hunger Strike to Resume September 26

As reported last month on KQED (click above for report), CDCR is reconsidering its isolation policy at SHU units. But according to an open letter by Pelican Bay inmate Mutope Duguma to the Bay View, plans are in place for inmates to resume their hunger strike beginning September 26.

We had our last and final meeting with Undersecretary Scott Kernan on Aug. 18, 2011. Sitawa and the rest of the negotiators were very disappointed with the outcome because the undersecretary’s horns came out for real!

All the same, we are going forward with our indefinite hunger strike, which will start on Sept. 26, 2011. We know they probably have manipulated some new attempt to deal with us, but what they fail to realize is that we were never playing. If these people think we are going to remain under this tortuous treatment, then they will get the body count that they seek or a bunch of hospitals filled up throughout the state.

This is the only way to expose to the world how racist prison guards and officials have utilized policy in order to torture us. And we have the material to expose them because many of us suffer from serious medical conditions or a lack of medical treatment, which we inherited right here in SHU.

This letter would suggest that the meeting with Kernan, held a day after the announcement about reconsidering the conditions, failed to satisfy the inmates. I wonder what piece of the puzzle we’re missing; that is, whether the inmates were told different things than suggested in the media. Do any of our readers have any information about the new strike plans?

The Un-Othering of Crime: The Kinzey Chronicles

Yesterday brought about a turn of events that puts Sons of Anarchy and Breaking Bad to shame. The newspapers yesterday and this morning were full of news about Cal State San Bernardino professor Stephen Kinzey, who is wanted in connection with meth drug dealing. The L.A. Times reports:

Photo courtesy Phil Willon, L.A. Times

The San Bernardino County Sheriff’s Department on Thursday said Stephen J. Kinzey, a 43-year-old kinesiology professor, allegedly led a local chapter of the Devils Diciples Outlaw motorcycle gang and a methamphetamine drug operation that brought in tens of thousands of dollars.

Authorities arrested nine suspected mid- and street-level dealers involved in the drug ring shortly after raiding Kinzey’s home, where they allegedly found more than a pound of methamphetamine, rifles, handguns, body armor, leather biker vests and other biker paraphernalia.

Kinzey remains a fugitive and is considered armed and dangerous, officials said.

This news story elicited quite a bit of witty commentary on my Facebook page, and after the laughs subsided a bit I started thinking about why this story piqued so much interest. I think the key to this is in Kinzey’s father’s words, quoted in the LA Weekly:

“My son is a Christian. He’s a good father of a good little girl. My son doesn’t drink. My son doesn’t smoke. I don’t get it. He’s a Ph.D.

What the Kinzey story reveals is how culturally entrenched the stereotype of a black, urban drug dealer is;  when encountering a white one with advanced degrees and privilege we respond with incredulity. So, what do we rely on to reinforce our confirmation bias about the way the world works? Alternative markers of crime. The story, for example, emphasizes Kinzey’s motorcycle club activities, seizing (perfectly legal) leather vests with the meth and guns. It also hints at the fact that Kinzey’s “live-in girlfriend” (as if cohabitation were uncommon) is a Cal State San Bernardino 2005 grad, so as to imply academic improprieties as well as criminal ones (who knows what the story there is? For all we know, they could have met after she graduated, and she might not even have taken a class with him; and anyway, it’s 2011 and Robinson is 33 years old.) What these details do is provide us with some information that will trigger our culturally shared notion of the gang biker, to explain why our criminal, a university professor, doesn’t fit our default mode.

Where does the connection between motorcycling and organized crime come from? For those interested in background, this 1992 CNN story provides some information, but if you’re pressed for time you’re better off with this excellent 2005 article by William Dulaney, which provides plenty of information on the history of outlaw clubs. The “one percenters” (a term incorrectly derived from a supposed quote after a rally, implying that only “one percent” of motorcyclists were also involved in crime) have become an iconic image in American culture. Ken Kesey’s Merry Pranksters’ historical meeting with the Hells Angels (and their apprehension of the latter, documented by Tom Wolfe in his classic The Electric Kool Aid Acid Test) is best understood on a background of violent, sexist biker culture, reinforced by a genre of biker films. Now, reality is not entirely socially constructed, of course. Motorcycle clubs have been conduits for organized crime, and their members have engaged in real violence that has caused real suffering to real victims. But make no mistake; white people commit crime not only on Harleys, but also in SUVs and Honda Civics and bicycles and public transportation. And organized crime occurs not only in clubs and gangs, but in corporations as well.

This is not to say, of course, that Kinzey is being framed, or that he is not involved in meth trafficking. At this point, he is a fugitive and we have not heard his side of the story; moreover, the evidence found so far would tend to support that. I merely try to point out the ways in which a newspaper story tries to paint an etiology of criminality that might explain the discrepancy between the cultural image of the young, black, urban drug dealer, by fleshing out the image of an alternative white drug dealer using less powerful, but still effective, ways to convey nonconformism, impropriety, and propensity.

Marin Interfaith Council Considers Death Row

Jeanne Woodford, former Undersecretary and Director of the California Department of Corrections and Rehabilitation (CDCR), Warden of San Quentin State Prison, and current Executive Director of Death Penalty Focus, spoke about capital punishment at Marin Interfaith Council‘s August clergy luncheon.
By way of background, Jeanne grew up on a ranch in western Sonoma County and went to school in West Marin. So she’s a local gal. Daughter of an Italian Catholic father, she “grew up believing you took care of each other.” In 1970, within two weeks of having been graduated from Sonoma State College, she began working at San Quentin. She loved the work; she felt she was doing something positive. She remained for 26 years.
Over the course of her tenure at San Quentin, she found that the prevailing philosophy and practice of imprisoning criminals became punitive rather than rehabilitative, in spite of addition, in 2005, of the words “and Rehabilitation” to the name of the institution: California Department of Corrections and Rehabilitation. She contends that changing prison policy to one of punishment for crimes led to more recidivism and more violence.
Inmates’ chances of turning their lives around depend in large part upon their remaining a part of their family and community outside of prison. Religious communities provide some of this support, and in the case of San Quentin, its location in Marin County brings about more religious support than is available at other prisons, particularly those in more remote locations.
Although she has personally opposed capital punishment all her life, and that as an authority she was taught not to judge, as Warden of San Quentin, which houses California’s Death Row, Ms. Woodford presided over four executions. This involved leading the prison staff through preparations and rehearsals for those executions. Among other things, she went to every single cellblock – those sentenced to death each has a cell to him or herself, adding to costs associated with capital punishment – on the day of the execution.
Ms. Woodford told of us an inmate named Massey, who, tired after years of “living” in the miserable place that is Death Row with his imminent execution looming, sought a speedier execution as a form of suicide.
Each death sentence requires two costly trials: one trial is to prove guilt or innocence; the other is to determine the penalty. Jurors who serve in cases where the death penalty is being sought must not oppose capital punishment. This limits and skews the pool of potential jurors.
Capital convictions entail further expense because they carry an automatic appeal. It is these appeals that cost the state thousands of dollars. In fact, capital cases cost twenty times more than non-capital cases to pursue and bring to conclusion.
In addition, there is the possibility of a wrongful conviction. One of those so sentenced, a man named Carillo, who was convicted by no fewer than 16 eyewitnesses, later was exonerated by DNA evidence in testing that was not available at the time of sentencing. However, DNA exists in only 20% of homicide cases. How many other innocent people may have been executed? Is there any justification for executing an innocent person, no matter how convincing the evidence? No.
Eventually Ms. Woodford came to believe she could do more to effect change from without the prison system than she could from within. She now works with Death Penalty Focus for the repeal of the capital punishment.
One of the several approaches DPF is taking, under her direction, is that of identifying law enforcement personnel who oppose the death penalty. This may be easier than it would seem at first consideration. DPF will soon release a list of more than 100 names.
Another project is getting 1,400 religious congregations to publicly support the goals of DPF, the abolition of capital punishment.[1]
DPF also seeks to raise awareness of victims to seek more than retributions. Further, funds not expended on perpetuating this irreversible punishment can be put to better use in solving the 46% of homicides that currently go unsolved. I suspect that victims’ families would find some sense of relief when their loved one’s murder is solved. Then trial and the pursuit of justice for the wrong can proceed.
In her work, Ms. Woodford never encountered a family member who advocated, and witnessed, the execution of the person who murdered their loved one who achieved any sense of relief, retribution, or restoration of balance. Killing the perpetrator, which I consider to be state-sanctioned homicide, does not bring back the dead loved one. In the words of the San Diego County District Attorney, the death penalty is “a hollow promise to victims.”
I would like to see some of the people involved in this effort, particularly those who survive the murder of a loved one, come into contact with the good folks at the Worldwide Forgiveness Alliance. I know that forgiveness can be difficult to achieve. I know it’s easy for me to advocate forgiveness when I do not have the experience of having lost a loved one to homicide. But there are others who have. I know that forgiveness is not for the benefit of the forgiven, although they may benefit. Rather, it unburdens the wronged party(ies) and liberates them to go on with their lives, still honoring the memory of those they’ve lost.
Then there is the matter of exonerees. Besides the case of Mr. Carillo mentioned above, Ms. Woodford told of another inmate, a woman named Gloria Killum, who was convicted as a result of false evidence and prosecutorial misconduct. Of the more than 200 men and women in California who were convicted of serious crimes, then subsequently found to have been wrongfully convicted, six had been sentenced to death. Such groups as the Innocence Project are finding innocent people every day. The recent release of the West Memphis Three is a prime example.
Further, many studies have shown, and experts agree, that the threat of capital punishment doesn’t deter people from committing murder and other violent crimes.
Worse still, the death penalty is inequitably applied: far more minorities are sentenced to death than are Euro-Americans. When the color of the convict determines the sentence, this is not blind justice. It is not justice at all.
The recent Alarcon study concluded that the death penalty costs California $184 million a year. It costs $100,000 more per inmate to house those sentenced to death than it does for non-capital inmates. There are presently 714 people, 15 of whom are women, living on Death Row. A psychiatric social worker has to visit each inmate every day, which increases the cost.
Funding of the DoCR accounts for 11% of the state’s General Fund; it used to be only 5%. By abolishing the death penalty, California could save a billion dollars in only five years. Think of the many ways that kind of money could be used. It could put more cops on the streets. It could be used to solve crimes. It could be used for education and after-school programs, giving at-risk youth knowledge and skills so they have a better chance at success in their lives. Accomplished, learned, self-assured people have more hope and less despair, and are less likely to be lured into lives of violence.
I would prefer that we as a society explore the notion of restorative justice. Although an exploration of the concept and application of restorative justice is beyond the scope of this entry, I encourage readers to consider it.
After Ms. Woodford’s talk, we engaged in conversation at our tables. One of the topics at my table was the matter of justice, fairness, and retribution. We discussed the differences, what each meant. I see crime as a rent in the fabric of society, one that needs to be mended. We need to rebalance “wrong” with “right,” to reweave the cloth into a whole again.
To be fair, MIC provided the opportunity for a member who supports the death penalty to rebut Ms. Woodford’s claims. The Rev. Rob Geiselmann, brave soul that he was in that company, spoke of freedom, of liberty being on a part with life. He contended that society needs to feel a sense of public justice.
Although last week a bill proposed by Sen. Loni Hancock (D-Oakland) to put the death penalty on the California ballot was defeated, we should not take this as a final defeat. We need to keep putting forth measures to abolish capital punishment in the State of California until they are approved. Then voters, the majority of whom polls show do not support the death penalty, can put this shameful and dishonorable practice in our past.
It is programs such as this put on by my local interfaith council that inform, enrich, and provoke us to think and rethink previously held opinions that make interfaith work so satisfying and worthwhile. I encourage other groups, whether they are interfaith organizations or any other kind, as well as individuals, to consider sponsoring such talks. I’m confident that Jeanne Woodford would make time for you in her busy schedule.
* * * * *
Aline O’Brien, aka Macha NightMare, is a Pagan presence in Marin Interfaith Council, where she serves on the Justice Advocacy Team.

[1] If I had a formal congregation of my own, I’d gladly sign such a statement. As it is, the Covenant of the Goddess, the religious organization of groups and individuals I represent in the interfaith arena, is too diverse to achieve unanimity on this issue.

Realignment in Alameda

Read this interesting interview with David Muhammad, the Chief Probational Officer for Alameda County. Seems like his heart is in the right place, and he’s doing some serious thinking on how to make this work. This can be a big success if agencies follow Muhammad’s example, rather than be pulled into the realignment plan kicking and screaming.

On October 1, California will move 848 prisoners from state prisons to Alameda County jails to finish their sentences. The county anticipates an additional 47 new inmates each month after that.
Also, any low-level parolee from Alameda County who violates their parole will go to county jail instead of back to the state prison where they served their sentence.
Once realignment is in full swing, the county expects 267 more people in jail on any given day than are serving time there today.

. . . 

Sergeant J.D. Nelson of the Alameda County Sherriff’s department said they have the space for the new prisoners in county jail. But they still need the additional state funds for new inmates. “You need to be provided with money,” he said, “to feed and clothe them.”
Eventually, Muhammad’s department expects to supervise and serve an estimated 1,900 new cases.
“I hope that it’s actually huge — that we are doing a much, much better job than the State had been doing,” said Muhammad.
The state, he added, has focused too much on incarceration instead of rehabilitation.
Muhammad wants to shift the focus towards rehabilitation by changing the county’s risk assessment system. When a person is first released to the probation department, officers there assess their likelihood to commit another crime. Probation officers then give the most attention to the people who are at the highest risk.
While this system is good in theory, Muhammad said, they are incorrectly assessing people. Under the current system, someone likely to commit 18 small thefts will score the same as someone likely to commit armed robbery – and will be supervised accordingly.
A study by The Pew Center for the States, however, concludes that low-risk people do better with less supervision.
For example, low-risk people are more likely to have a job, Muhammad said, but if they have to go to the probation office during working hours to meet with a probation officer once a week, they are more likely to lose that job.
Muhammad identified another crucial area where the Alameda County probation can improve – he wants to get the department to the point where each probation officer supervises 50 people.
“Right now,” he said, “the ratio is all over the place.”
Currently 15,000 people are on probation in Alameda County. Eleven thousand of them don’t have probation officers because of a lack of staffing and funding.
AB 109 will provide some of that funding.
“I actually see this as an opportunity where we can fix everything at once,” Muhammad said.

Did the Victim Participation Bill Increase Victim Participation?

Yesterday my students and I were talking about legislation initiatives. One of the insights of our discussion, prompted by the experiences of some of them in drafting bills, was bringing up the question whether legislation was always designed to achieve its stated goals, or to serve some other enforcement goal. Some examples we floated around were the San Francisco sit-lie ordinance, which aims not at criminalizing sitting on the sidewalk per se, but rather to provide the police with an easy enforcement tool against undesirable urban elements without having to spell out the problem. This gap between proclaimed legislative intent and actual intent to enforce is something Dan Portman and I refer to in this piece as “inequitable enforcement.”

As has often been the case since the mid-1990, our example this morning comes from the world of pro-victim legislation. The 1990s, as Jonathan Simon convincingly argues in Governing Through Crime, were the decade of the victim, who became the symbolic citizen, occupying the role previously occupied by the yeoman farmer and the small business owner. In 2008, California citizens voted for Prop 9, also known as Marsy’s Law. Ostensibly a victim rights proposal (pretty much granting the same rights victims already had before the law passed), the big changes made by the proposal included lengthening the period before a given inmate is entitled to a parole hearing. At the time, we floated around the question whether Prop 9 violated the single subject rule, and some aspects of it were challenged at the 9th Circuit.

But the real question, which we could not answer at the time, was of course whether a legislative initiative ostensibly designed to increase victim participation in the criminal process really does so. And we now have an empirical answer, from a study by Laura Richardson: No, but it sure impacted the process in other ways.

Here is what the black-letter law purported to do:

Marsy’s Law has made major changes to many aspects of parole. Section 3041.5 of the California Penal Code was the most significantly altered by the adoption of Marsy’s Law. Marsy’s Law changed the default time for the date of the next parole hearing from a single year to fifteen years. It changed the amount of time that could be set between parole hearings from 1-5 years to 3-15 years. It altered the standard for deciding when to set the next hearing, shifting the burden from the state on justifying why the inmate continued to be a threat to public safety necessitating a longer time before the next hearing, to the inmate in showing the non- existence of reasons why he or she continues to be a threat to public safety. It also gave the board less discretion in setting parole hearings only allowing parole hearings to be initially set at either 3, 7, 10 or 15 years.

Section 3043 of the California Penal Code was significantly changed by the adoption of Marsy’s Law as well; allowing for victims, victims’ families and up to two representatives to have greater input during the parole hearing. Victims’ [sic] are now entitled to have their “entire and uninterrupted statements” heard by the Parole Board. Additionally, the inmate does not have the right to cross-examine the victim at the parole hearing.

After coding and analyzing 211 randomly-selected parole hearings both before and after the implementation of Marsy’s Law, Richardson’s findings are twofold: First, the time between parole hearings has nearly doubled, and the law is a strong determining factor of parole setting. 

Controlling for the factors described in Part II, the coefficient for Marsy’s Law in the regression shows a positive increase in the amount of time set by the Parole Board until the next hearing by 2.06 years (+/-0.72) for full parole hearings . . .  No other variable showed an equal positive increase in the amount of time set between parole hearings by the Parole Board. Marsy’s Law had a more significant impact on the time set until the next parole hearing by the Parole Board than any of the factors that the board must utilize in making their parole decisions or the inmate’s activity. 

And, the analysis fails to find any increase in victim participation in the process:

Using least squares regression to test the validity of my model I was unable to find any impact of Marsy’s Law on victim participation at the parole hearing. The only variable that was significant was whether the hearing was an initial or subsequent hearing. When the hearing was a subsequent hearing victim participation decreased by 1.219 (+/1 .46). 

Wait – Decreased?

This raises an open-ended question: In light of these findings, is Marsy’s law a failure or a success?

Props to our friends at the Prison Law Blog and at Crim Prof Blog for the link.