Karlton v. Prop 9: 1:0

More news on several controversial portions of Prop 9, which we discussed here in the past. As our gentle readers may recall, Prop 9 put into legislation more victim involvement in the criminal justice system, including parole hearings. While some of this was not news – and in several counties, at least, was common practice before the passage of Prop 9 – this is the aspect that was prominently displayed on the supporters’ website. However, Prop 9 also included punitive provisions: lengthening parole procedures as well as limiting the right to counsel in parole revocation hearings for indigent defendants.

Yesterday, Judge Karlton invalidated the portions of Prop 9 that infringe on parolees’ rights, particularly the restrictions on the right to counsel, due to a contradiction with a permanent injunction, reached as a consent decree, in 1994 following litigation regarding parolees’ rights. The Sac Bee reports:

In the parolees’ 1994 lawsuit, Karlton found the state’s existing procedures were in violation of the 14th Amendment’s due process guarantee. His resulting permanent injunction was ratified by the state and is legally construed as a consent decree.

“To the extent that Proposition 9 conflicts with the permanent injunction, the former may not be enforced,” Karlton said in Thursday’s 34-page published opinion, which cited the supremacy clause of the U.S. Constitution.

The Constitution defines itself as the “supreme law of the land, and its judiciary supreme in construing what the law is,” the judge declared.

“The state’s action is not given special deference by virtue of having occurred through the initiative process,” he added.

Interestingly, the debate about Prop 9 has, yet again, been framed in terms of money. The Chron cites some of the arguments:

“Especially now, we cannot afford to be spending tens of millions of dollars on unnecessary privileges for convicted felons,” said Nina Salarno Ashford, representing Crime Victims United of California. She urged the state to appeal the ruling “to defend the will of California voters, and the pocketbooks of California taxpayers.”

Indeed. Because, what would get us talking about victim rights and due process for parolees, if not our pocketbooks?

Judge Karlton’s Luncheon Address

(image courtesy law.com)

It was our great pleasure to have Judge Lawrence Karlton as our luncheon speaker. Naturally, Judge Karlton could not directly comment on the ongoing Plata/Coleman cases; he did, however, discuss the principles underlying them and some of the broader concerns surrounding them.

Judge Karlton opened with a discussion of the long nature of the problem; the Coleman case hails from Governor Wilson’s days, and the Valdivia case was originally filed against Governor Davis. In hindsight, the expectation that a 1995 determination that the state had violated its inmates’ Eighth Amendment rights would yield immediate results seems rather naive; there is still much work to be done before the system can be brought into compliance with constitutional standards. Fourteen years later, there is still no bed plan for mentally ill people; there is no systematic program for evaluating inmates; treatment programs are few, and sorely lacking sufficiently trained administrators; the confidential maintenance of medical records is far from perfect; and there is no system for identifying suicide risks. Much of the plight of the medical system can be traced back to the massive closing of mental institutions during the Reagan era; so far, no CA institution can be said to comply with constitutional standards. Not much progress has been made with parole revocation reform, either.

The question then becomes why the CDCR does not rectify the situation to rid itself from the federal judiciary; the answers are complex and subtle. One possible answer provided by Judge Karlton is that prison administration is a large bureaucracy, and in such institutions, existing rules have a tendency to perpetuate the status quo and discourage change. There is the additional complicity of other professional systems, such as the psychiatric system; it is difficult to hire professionals to work in prisons located in remote places. As Judge Karlton reminded us, we do not have to have an evil disposition to end up with a dysfunctional system. There is also the issue of lobbying power; prisoners and their families do not represent a real constituency.

As to the broader issue of the court’s role in reforming prisons, Judge Karlton had interesting things to say. Federal judges do not stand for reelection, they present a hope for change. However, law and courts, he argued, are bludgeons; what is needed for these problems is a scalpel. Federal courts can only intervene when state standards fall beneath the Federal constitution. What is desperately needed is a change in culture within the state, and attention to the parts that are hidden from state citizens; those which, according to Dostoyevsky, are the measuring rods for our true level of civilization.

More About Zen Prisons and Other Magical Gardens

The 1960s were revolutionary years in penology; they mark a thriving period in prison research. Many big names in the field, influenced by Erving Goffman’s concept of total institutions (and, more broadly, by Howard Becker’s framing of labeling theory), became interested in the social dynamics of prison and its impact on human behavior. This interest in prison yielded a number of classic studies, whose findings now seem obvious to us, and who may be somewhat dated, but whose basic insights are still true.

One such classic was Gresham Sykes’ 1965 article The Pains of Imprisonment, in which he made the then-revolutionary argument that imprisonment does not consist solely of a loss of freedom, but carries with it a number of other impairments to the inmate’s quality of life. He named four such pains: the loss of material goods; the loss of heterosexual relationships; the loss of autonomy; and the loss of personal security. Each of these merits a discussion of its own, and since the original publication, several people have suggested additional pains of imprisonment. In his book Reforming Punishment, Craig Haney develops the idea of the psychological impact of imprisonment. Long before our current crisis, he argued that prison management and funding adversely impacted inmates and, therefore, contributed to the problems within walls and after release.

(Incidentally, Sykes’ full original study, The Society of Captives, has recently come out again, with a new and excellent introduction by Bruce Western. )

As faithful readers may recall, Melissa’s post a while ago highlighted the current heated debate about prison conditions in light of the initiative to end the medical system receivership; the receiver’s aim to create a “holistic environment” for prisoners caught much flak from critics. One way of framing this controversy is by realizing that Sykes’ point has been turned on its head; we seem to take for granted, and agree with, the imposition of pains of imprisonment in addition to the deprivation of liberty.

A good illustration of the pains of imprisonment is the comparison between the food and hygiene items offered to prisons and to other institutions. Basic comfort items are difficult to come by in prison, and families and friends who want to help inmates naturally would like to supplement these. One of the simplest ways to send a package to an inmate in the U.S., without having to face searches and confiscations, is to do so through My Care Pack, an internet service offered by Canteen. Canteen also offers food services for institutions and vending machines. I encourage you to pick a facility and browse through the products. Here, for example, is a $17.95 gift pack:

Most products sold by Canteen are quite cheap and basic. Still, in prisons dominated by gangs and a strong illicit economy, a pack like this might provide a lot of comfort. The profit margin for Canteen is significant (grad student readers will be interested in examining the price of instant ramen), but the service provided is hassle-free, in the sense that delivery is relatively painless, and freedom from administrative searches is a good thing. Obviously, other Canteen clients (restaurants, institutions, and NASCAR) get an entirely different set of offerings, for a different price range. And, naturally, prison economy does not equal communism; prisoners with more means, and more affluent supporters outside prison walls, will be living better, comfortwise, than prisoners who lack friends and relatives, or whose friends and relatives cannot afford to furnish them with supplementary goods. These inequalities, and the importance of creature comforts, are some of what fuels the prison economy, which is to a large extent driven by supply and demand for drugs (see this little piece from Prison Life Magazine). Again, this is nothing new; Lloyd McCorkle and Richard Korn provided the foundation for a discussion of the prison’s internal economic system in their classic 1965 piece Resocialization Within Walls.

This commentary should not be taken as a simplistic critique regarding the meager offerings to prisoners, or a cry for more coffee brands, but rather as a way to conceptualize the fact that simple comforts, like readily available brand snacks, are not readily available to inmates. Another aspect is the capitalist concept of choice. The dazzling array of, say, toothpaste types, does not exist for inmates. Whether or not this should be a part of punishment is not really the question (admittedly, one could not accommodate full access to capitalist economy from within walls even if we wanted to); the point is that it is, de facto, part of the prison experience, which is often hidden from commentators and critics.

Craig Haney, author of Reforming Punishment, will be on the opening panel of our upcoming conference.

The Dark Side of Gideon

It is universally acknowledged that the 1960s were good years for criminal defendants. The Warren court, subscribing to a philosophy of constitutional incorporation, bright-line rules and prioritizing accuracy over efficiency, provided defendants with a series of constitutional rights which would be chipped at by the post-Warren courts for many years afterwards. The right of rights – a right as well as a tool to achieve other constitutional rights – was the right to counsel, affirmed in Gideon v. Wainwright, and later (in Argersinger v. Hamlin and in Scott v. Illinois) more narrowly defined as to include any situation of “actual imprisonment”. Those of you seeking some of the story behind the monumental Gideon decision, will find it in Anthony Lewis’ fantastic Gideon’s Trumpet

By making the decision applicable against the States, the Warren court did more than intervene in State systems of values; it intervened with their budget. It required the states to come up with good strategies to provide subsidized representation for indigent defendants. An important rationale behind this decision was the wish to generate more equality between defendants of different classes. One way of doing so was through creating Public Defender offices around the country, though not all states did so, and some chose to work with contracting and retainer systems. 
The dark side of providing broad, free legal services has to do with the quality of service. Research in the 1960s and 1970s was not oblivious to this fact, and was notably skeptic about the quality of representation offered by public defenders to indigent clients. Abraham Blumberg compared such representation to “a confidence game”, in which the public defender, in cahoots with other members of the “courtroom workgroup”, “cons” the client into agreeing to plea bargains, thus making the system run more soothly and efficiently. The recently and sadly deceased David Sudnow, in a no-less classic and more systematic study, shows how defense attorneys assess the extent to which a specific case is a “normal crime”, which can be “sold” as such to the prosecution for a preset tariff. Newer studies, such as Debra Emmelman’s 1996 article and her subsequent book, Justice for the Poor, had a more positive and less cynical perspective on legal services to indigents; however, Emmelman points out to the lack of resources faced by lawyers in these situations.
And, indeed, with no resources, institutions that provide ample representation cannot guarantee quality representation. Just a few months ago, the New York Times reported on several Public Defender offices around the nation who had refused to take on new cases, being unable to properly and adequately handle the load they faced. 
These budgetary problems have come to haunt the Bay Area as well. As reported in today’s Chronicle, the San Francisco Public Defender, Jeff Adachi, is reporting a dire lack of resources, and arguing that if the office does not get two more paralegals, some cases will need to be referred to firms outside the office. This bothers me profoundly not only as someone who cares about the criminal justice system, but also as an educator who prepares public-interest-minded students for, among other vocations, careers in public defense. This year, scores of bright, talented, and hardworking students will graduate from top law schools, and many of those who seek public defender careers will find themselves working temporary hourly-paid jobs, or, worse, unpaid clerkships. 
The system is not only bankrupt where prisons are concerned; it is bursting at the seams in other stages of the criminal process. Here’s hoping that things get better sooner rather than later.