The long-standing debate about the construction of an alternative to San Francisco’s Jail no. 4 at 850 Bryant ended yesterday with a victory for the jail opponents. The supervisors declined to allocate funding to the new building. The advocates who fought against the new jail tooth and nail took to social media to proclaim their victory.
The anti-jail advocates are right in saying that we have been housing people that should not have been incarcerated in the first place, and that the high percentage of people with mental illness in the jail suggests that what we need is a mental institution, not a correctional one. They are also right in fearing the construction of a building with more capacity, because our collective experience with incarceration is that new beds tend to fill with new inmates.
I’m sympathetic to these arguments, but they are also somewhat short-sighted. An increase in incarceration is not the only evil under the sun. Unsound, unhealthy incarceration conditions are very problematic as well. Since the existing jail is seismically unsound and dilapidated, the result of the anti-jail victory is basically a temporary return to the status quo, which is dangerous and undesirable. And in the long run, if Jail no. 4 ceases to be operative and there’s no alternative, the concern is that other jails will become overcrowded and unhealthy.
So, what’s to be done? The only way out of this maze of bad alternatives is to do the hard work of an empirical survey. Let’s analyze the San Francisco jail population. How many people are there because of a sick money bail system who could otherwise be out on O.R.? How many people should be receiving medical treatment that they can better get in a medical facility? How many people are doing long, realignment-type time in an institution unsuited for a lengthy stay? A budget cut on its own does not lead to a cut in incarceration. It’s time, indeed, to move to another system of rationing punishment: return on investment.
Fueling the mental health system and reforming the money bail system (hopefully by legislating the bail bonds industry out of existence) costs money. Possibly a lot of it. But it has to be properly budgeted and invested. Just saying “no” without providing, and budgeting for, a viable alternative, may be touted as a victory, but it leaves San Francisco jail inmates in the lurch.
Pretrial detention has been explicitly left out of the category of “punishment”, per Bell v. Wolfish (1979). But today’s decision in Kingsley v. Hendricksonis a step forward in protecting pretrial detainees from use of force and violence while behind bars.
Michael Kingsley was arrested on a drug charge and held in a Michigan jail while awaiting his trial. Following the escalation of a dispute over Kingsley’s refusal to remove a piece of paper from the light fixture, officers forcibly removed him from his cell and put him in another cell, forcing him to lie face down on a bunk bed with his hands cuffed behind his back. There’s some dispute over what happened next; Kingsley said the officers slammed his head against the bed, which they denied. But everyone agrees that the officers subsequently tased Kingsley in the back for five minutes and then left him alone in the cell.
Kingsley filed a §1983 suit against the jail officials. Since he couldn’t argue cruel and unusual punishment, he argued that the officers’ behavior violated his due process rights. The legal debate that ensued revolved around the question: what legal standard should be used when adjudicating claims about use of force? Kingsley maintained that the appropriate standard was objective: that is, that all he needed to prove was that the use of force would have seemed excessive to a reasonable officer at the time. The officers, by contrast, argued that the appropriate test was subjective, i.e., that Kingsley would have to prove intentional conduct on their behalf (very much akin to the standard employed in Eighth Amendment analysis in similar cases involving inmates). Since officers are likely to perceive their actions as appropriate (or at least claim they were appropriate later in court), you can see why the former standard is more favorable to the plaintiff.
The court found, 5:4, for Kingsley. The division of votes is pretty much what you would expect; Justice Breyer wrote the majority opinion, finding that an objective standard is appropriate here.
Whenever I talk to my students about the reasonable man, I draw someone like this on the blackboard:
Whenever courts hold someone to an objective standard of behavior–and this can happen in the context of a trial for criminal negligence or in a disposition of a search and seizure incident–it essentially compares the behavior of the person in question to an imaginary person. The “reasonable man” is not a statistical aggregate of all the people in the world; even if one’s attorney summons all the people in the world and they testify that they would behave just as the defendant has done, it’s not enough. The court is the sole arbiter of what a “reasonable person” would have done, and sometimes it deliberately sets the standard just a bit higher than the behavior of an average person, or of the defendant himself. The reason for that is that negligence, reasonability, and other objective standards rarely address issues that were within the defendant’s awareness and intent, and the court seeks to educate people who might be in the defendant’s shoes at a later time on how to behave.
If this seems harsh, take into account that the court’s “reasonable man” is not entirely divorced from the circumstances in which the actual actor found himself. As Justice Breyer reminds us in Kingsley, “[a] court must make this determination from the perspective of a reasonable officer on the scene, including what the officer knew at the time, not with the 20/20 vision of hindsight.” In our case, in which the officers had to decide how to treat Kingsley for his paper-on-the-light-fixture violation, the court’s assessment of the officers’ reasonability may include the following factors: “the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff ’s injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting.”
Justice Breyer explains why the objective standard is suitable in this case. He starts off by reminding us that, precisely since pretrial detention is not “punishment”, whether or not the officers intended to “punish” the detainee does not matter for the disposition of the case. Moreover, it is a workable standard, which might even be included in training materials for jail personnel anyway. And finally, even though the standard is objective, since the examination takes into account the officer’s perception at the time, it protects officers who acted in good faith.
Justice Scalia’s dissent ties Kingsley to Wolfish, arguing that the objective standard is not enough to equate the behavior to punishment. Ironically, juxtaposing the majority and the dissent leads to some unclarity on which situation benefits the defendant more: framing pretrial detention as “punishment” or as something else. And Justice Alito’s dissent brings up even one more possibility, which is as of now undecided–the question whether a detainee in Kingsley’s situation could raise a Fourth Amendment claim.
Detainee rights advocates may find some encouragement in the fact that the majority opinion subverts the usual problem with non-punishment confinement situation, which is the inability to apply Eighth Amendment protections to them, by supporting a test that is actually more favorable to the defendant. But what is even more remarkable is that the decision leaves the door open to Fourteenth Amendment claims of excessive force not only on behalf of detainees, but on behalf of convicted prisoners:
We acknowledge that our view that an objective standard is appropriate in the context of excessive force claims brought by pretrial detainees pursuant to the Fourteenth Amendment may raise questions about the use of a subjective standard in the context of excessive force claims brought by convicted prisoners. We are not confronted with such a claim, however, so we need not address that issue today.
What with this, and with Kennedy’s concurrence in Davis v. Ayala last week, this was a good week for promising dicta sayings that are sensitive to prisoners’ rights and to correctional excesses.
But lest we become overly overjoyed, let’s keep in mind that Kingsley’s ordeal dates back to 2010. The conversation about bail and pretrial detention often expounds on how much better off you might be if you are not detained before trial: it’s easier to prepare your defense, communicate with your loved ones and with your attorney, and keep your job, not to mention avoiding doing time that might later become “time served” by default. Kingsley is a reminder that pretrial detention also exposes one to violence and force, which hindsight support from courts–even from the Supreme Court–cannot undo.
—— Props to Mark Edwards for drawing my attention to this interesting case.
Los Angeles County probation officials reported Thursday that Los Angeles County’s jail population is at its lowest level since realignment sent it soaring in 2012 – and they expect it to keep dropping. They credit voter-approved Proposition 47, which lowered penalties for drug crimes. In a status report to the county Board of Supervisors, officials said L.A. County’s jails had fewer than 16,000 inmates at the end of 2014. Just two months earlier, there were more than 19,000 inmates. L.A.’s jail population was last under 16,000 inmates in 2011. The numbers began to climb when the state launched its massive “realignment” effort. That policy called for sentencing non-serious, non-violent, and non-sexual offenders to county jail, rather than state prison, which led to overcrowding in the county’s jails. Proposition 47 passed in November and has effectively erased the crowding caused by realignment. Officials said the drop has allowed them to keep more offenders incarcerated for larger portions of their sentence. They still don’t have enough space to keep everyone for their entire sentence. But officials expect the jail population to keep dropping. About 2,500 jail inmates are likely eligible for re-sentencing and early release, according to the probation department. Inmates must apply for re-sentencing, and have it approved in court.
A few comments:
(1) This is further proof that it pays off to be cheap on crime. (2) It’s beautiful to see Prop 47 do what the realignment could not – put people out of incarceration in the first place, rather than shift them across jurisdictions – and cure some of the financial and physical bulges created by realignment. (3) I’m now sitting and waiting for the other shoe to drop–the stories analyzing the impact of Prop 47 on crime rates. When these start coming through, be mindful of research quality; a lot has happened since the recession, and since the realignment, that needs to be controlled for. (4) Plenty of the L.A. jail inmates are pretrial detainees, who of course are not affected by the passage of Prop 47. How about alleviating some of that unnecessary crowding via sensible bail reform?
The main theme that stood out for me was the question of choice and alternatives, and especially the inability to offer good alternatives in the context of a prison regime. Surely we can do better than the quality of health care that is offered to pregnant women, but that requires a lot of thought and working within difficult constraints. The first panel was held, of course, in the shadow of the horrifying discoveries about sterilizations in California prisons, and many of the panelists referenced that incident, as well as other horrors involving the management of pregnancy and birth in prison. The birth process itself and the immediate separation from the child are obvious problems. But what about, for example, the practice in Riverside of having pregnant women wear neon orange bracelets? The intent is probably good–to ensure that they are handled with extra care and safety–but what about a woman who wants to terminate her pregnancy and does not necessarily wish for the pregnancy to be common knowledge?
The same issue reverberated in the last panel, the one about trans inmates. The options for classification are fairly limited: a trans woman, for example, could be exposed to atrocious forms of abuse on the part of inmates and guards if placed in a men’s prison, but would also be ostracized in a women’s prison. And, as it turns out, different trans people have different preferences in this regard–some involving their safety and some involving their desire to form intimate relationship (which is very human and understandable and, in my opinion, deserving of the same amount of respect.) Isolation may protect one from some forms of abuse, but open other avenues of abuse, and has its own huge detriments. So what’s to be done?
Subjecting people to regimes of incarceration inherently robs them of a modicum of autonomy about their lives, and the choices are not abundant or good. Even when there are good intentions–and that is not always the case–they can be distorted by misunderstandings and generalizations. Advocating for special populations under these circumstances can be extremely fraught, and I’m very grateful to have learned more about this from the folks at the front line of advocacy.
A new report by Californians for Safety and Justice and the Local Safety Solutions Project announces good news: pretty much all California counties are committed to enrolling their criminal justice populations in health care, and 70% of counties are actively doing so.
Where does the funding for this welcome activity come from?
This is excellent news. As we know, many formerly incarcerated people don’t necessarily have the resources or know-how to deal with the intricacies of Obamacare and are walking out of jail systems whose health care services are sometimes truly deficient. This guarantees that, as people return to life on the outside, they’ll be covered and protected.
One of the declared purposes of the Realignment was to benefit from the added rehabilitative value of doing time within one’s community, close to one’s family and social network, and in the context of one’s future housing and job opportunities upon release. But this concept turns out to be more malleable than we might’ve thought in 2011. A new bill, AB 1512, aims at allowing counties to import/export inmates from/to other counties. The introduction to the bill elaborates:
Existing law, until July 1, 2015, authorizes the board of supervisors of a county, where, in the opinion of the county sheriff or the director of the county department of corrections, adequate facilities are not available for prisoners, to enter into an agreement with any other county whose county adult detention facilities are adequate for and accessible to the first county and requires the concurrence of the receiving county’s sheriff or the director of the county department of corrections. Existing law also requires a county entering into a transfer agreement with another county to report annually to the Board of State and Community Corrections on the number of offenders who otherwise would be under that county’s jurisdiction but who are now being housed in another county’s facility and the reason for needing to house the offenders outside the county. This bill would extend the operation of those provisions until July 1, 2020. Existing law, operative July 1, 2015, authorizes a county where adequate facilities are not available for prisoners who would otherwise be confined in its county adult detention facilities to enter into an agreement with the board or boards of supervisors of one or more nearby counties whose county adult detention facilities are adequate for, and are readily accessible from, the first county for the commitment of misdemeanants and persons required to serve a term of imprisonment in a county adult detention facility as a condition of probation in jail in a county that is party to the agreement. Existing law, operative July 1, 2015, requires these agreements to provide for the support of a person so committed or transferred by the county from which he or she is committed.
This is not a particularly original solution to jail overcrowding. After all, we already export thousands of CA inmates to other states, where they are housed in private facilities. Compared to the uprooting and difficulties of out-of-state incarceration, this is really small potatoes. On the other hand, at least with state prisons there was no pretense of trying to rehabilitate people close to their communities. California is a very large state; a family visit to Corcoran or Pelican Bay requires many, many hours of driving from the Bay Area. Large scale import/export of inmates by counties wishing to utilize their facilities to improve their budgets works against the idea of local justice, frustrating one of the purposes of Realignment.
The Governor’s proposed budget for 2014-2015 is out and its full text is here. Public safety is addressed on pages 65-88 and the correctional budget is addressed on pages 89-93.
The budget proposes total funding of $9.8 billion ($9.5 billion General Fund and $320 million other funds), which is 9% of the state budget – only slightly less than our expenditures on higher education.
The report reviews the history of realignment and the Plata litigation, mentioning the state prison system’s commitment to reentry as per the Blueprint titled The Future of California Corrections (here is the Blueprint, for your convenience.) The report emphasizes CDCR’s commitment to expanding the rehabilitation menu to reach 70% of all inmates.
The report goes, at length, into the changes brought about with realignment, including the following useful classification of the prison population:
Still, the state prison population is higher than projected in 2013 – about 135,000 inmates vs. the 129,000 projected. The parolee population is expected to increase in 2013-2014 and decrease in 2014-2015, as a result of realignment and the transference of post-sentence supervisees to the counties. There are also more juvenile wards than projected, as a result of an increase in first admissions and in parole violations.
The budget report explicitly refers to the legal battle waged around the 137.5% capacity cap mandated by the federal court, and assumes that the deadline for meeting the cap will be extended by two years. Remember the $315 million that Governor Brown appropriated at the very last minute of the last legislative session? If there is an extension, the budget will allocate the first $75 million of the money to recidivism reduction (state reentry, substance abuse treatment, services for the mentally ill, and a special reentry facility) and the rest to the general fund. However, should the population cap deadline not be delayed, the money will be invested in private prisons “to avoid the early release of inmates.” You can see where this is going; the money is essentially there to more-or-less extort the Three Judge Panel and circumvent its perceived intention. The message is – play nice and give us two more years, in which case we’ll invest in rehabilitation, or you’ll get private prisons galore.
More interesting stuff: A projected expansion of medical and elderly parole. The age cutoff for the latter is 60, which means 5.4 percent of male inmates and 4.4 percent of female inmates (as of June 30.) If they pushed the age cutoff back to 55, which makes criminological and gerontological sense (people age faster in prison, and people leave crime behind at an earlier age), you’d be releasing 11.2 percent of men and 10.4 percent of women. So – a step in the right direction, but plenty of room for improvement.
The report also mentions two other savings mechanisms: nonviolent third-striker releases per Prop 36 and juvenile parole per SB260. While the report doesn’t explicitly take credit for them, it is a bit surprising to read such positive reports of these from an entity that fought the spirit of these initiatives for years.
A considerable amount of the money will be spent on improving health scores in state prisons so they can be wrangled away from the Receiver. Much of the money is allocated to fund litigation, to fight the Receiver and class-action suits in court; the rest of it on improvements to pharmacies, facilities, and staff training. The report mentions the impact of Obamacare on health care for county inmates as opposed to state inmates.
Lastly, there are some notable comments on realignment in the counties. There’s a proposal to make split sentences the default, but it still leaves a considerable amount of discretion to county judges, and would still create big disparities between county. Also, the report notes that keeping long-term inmates in county jails is not a great idea, but does not volunteer to take them back into state institutions en masse (as Manuel Perez has just suggested) because of the need to comply with the Plata/Coleman caps. The state is willing to take in offenders who are serving 10 years or more – that’s about 300 years annually – but that, of course, raises the question why people receive 10 years in prison for non-non-non offenses in the first place.
Assembly Bill 720, authored by Assemblymember Skinner, was signed by Governor Brown today. This bill allows the board of supervisors in each county to designate an entity to assist certain jail inmates to apply for a health insurance affordability program, and will prohibit county jail inmates who are currently enrolled in the Medi-Cal from being terminated from the program due to their detention, unless required by federal law or they become otherwise ineligible.