Ninth Circuit Revives Inmate Lawsuit for Pagan Chaplaincy

A three-judge panel of the Ninth Circuit has acknowledged, apriori, that Pagan inmates complaining about the lack of a paid chaplain might have two valid legal claims, and remanded the case to a lower court for consideration of such claims.

Some background: CDCR employs a five-faith policy, which acknowledges, for purposes of religious accommodation, Catholicism, Protestant Christianity, Judaism, Islam, and Native American spirituality. For years, volunteer Wiccan prison chaplain Patrick McCollum waged a legal struggle to obtain ackowledgment, and lost due to lack of standing: The right to a chaplain belongs to the inmates, not the chaplain.

A recent survey of religion in prison has revealed that Paganism, or Earth-based spirituality, is one of the fastest growing faiths in correctional institutions, and according to McCollum, the survey is tainted by underreporting on the part of inmates that were concerned about the repercussions.

In Hartmann and Hill v. CDCR, decided a few days ago, inmates argued that the lack of an official chaplain position also leads to other forms of religious discrimination and lack of accommodations. Their main contention is that the “five-faith policy” is not based on any neutral considerations, and that in Chowchilla, where the plaintiffs are incarcerated, there are more Pagan inmates than members of some of the approved five faiths.

In reversing the district court’s dismissal for failure to state a claim, the Ninth Circuit court was careful to state that the First Amendment does not require CDCR to provide all faiths with a chaplain. Nor did the Court find an equal protection violation. However, the court did find that the inmates’ claim that CDCR violated the Establishment Clause is valid; that is, that the existing arrangement potentially unreasonably burdens the practice of religion on the basis of preferential treatment. The plaintiffs also have a valid claim based on the California Constitution. In remanding the case to the lower court, the Ninth Circuit court instructed to view the Establishment Clause argument through the lens of facts – conditions of employment for chaplains, number of inmates in need of religious services, etc.

For excellent, informed commentary on the decision, including from Patrick McCollum himself, see Jason Pitzl-Waters’ blog The Wild Hunt. Or, for a dosage of ignorance and bigotry, see Debra Saunders’ poor excuse for a column on the Chron.

Bill Allowing Resentencing of Lifer Juveniles Passes Assembly

Excellent news: SB9 – a Senate bill allowing lifer juveniles to have their life without parole sentence reevaluated by a judge – has passed the California Assembly.

This is a major achievement. Leland Yee has been pushing this issue for years. The full text of SB9 is here. And there is more information on the Fair Sentencing for Youth website.

In order to pass, the bill needs to be reaffirmed by the Senate (which has already approved it) and signed into law by the Governor, who is already being pressured by opposition groups.

Here’s what you can do to help: Click here to contact the Governor, and your Senator, and express your support for the bill.

And: Regarding our last post – the California Supreme Court has done the right thing. In CA v. Caballero, the Court has held a 110-year sentence to violate Graham v. Florida. This case joins CA v. Mendez, in which the Court struck down a 84-year sentence for a juvenile who did no harm.

Once you’ve emailed your Senator and the Governor, rejoice with all Californians who believe that everyone, especially at a very young age, should be offered a glimmer of hope and redemption.

Solitary Confinement for Juveniles

Earlier this week, the Public Safety Committee killed SB 1363, a bill that would disallow subjecting any minors, whether in prison or in jail, to solitary confinement, unless they pose an immediate and substantial risk or harm to others and other options have been exhausted. Even in the latter case, the juvenile would have to be constantly evaluated.

Activists are making one more push for it this coming Tuesday. Linda Roldan’s post on the Ella Baker Center blog, A Mother’s Nightmare, offers a personal perspective on the immense harms of solitary confinement for minors.

My son is not a tough kid and wasn’t ready for the gladiator school called DJJ. On his very first day, he was beat up. He’s seen things he should never see, like kids fighting each other and guards assaulting and pepper-spraying kids on a daily basis. After experiencing solitary confinement, violence, and humiliation by guards, he now suffers from severe depression and hallucinations. He never had serious mental health issues before. Now he is suicidal.

We’ll keep you posted as to the status of the bill.

State Juvenile Program Profile

Photo credit Lea Suzuki for the San Francisco Chronicle.

Juvenile realignment is such a thorny issue these days, with so much talk about direct filing concerns and proper institutions. Here’s one more thing to consider: Some unique state programs, which are costly, but truly make a difference for juvenile state inmates convicted of serious crimes.

These programs are the focus of a story by Marisa Lagos on yesterday’s Chron (only available online as of this afternoon. Lagos visited two of these unique institutions, O.S. Close and N.A. Chaderjan, and brought back stories from the administrators and the wards.
Here’s a description of one of these facilities:
The facility is oriented around Chad’s sprawling central yard, a huge expanse of grass that includes football and soccer fields and an adjoining basketball court. In the early evenings, before dinner and nighttime treatment sessions, the yard fills with youths in matching outfits, playing sports and participating in other recreational activities. 

But during business hours, vocational programs are under way in the squat buildings that are the hallmark of these correctional facilities.

Inside one of those large rooms, various pieces of computer hardware rest in neat piles as five wards – dressed in polo shirts emblazoned with a “Merit Partners” logo – inspect open hard drives.
The youths are employees of the nonprofit Merit Inc., which was founded 14 years ago with the goal of training incarcerated youths in useful job skills. The Stockton facility is a registered Microsoft refurbisher, and the wards that work here are all trained in rebuilding and repairing dated equipment that is donated by corporations.

Unlike most prison jobs, they are paid well – starting at minimum wage, which is $8 an hour in California, and up to $10 an hour. They work up to 40 hours a week, money that goes toward restitution for victims of violent crimes, room and board at the facility, family support if appropriate, and a savings account in the worker’s name that will help them land on their feet when they are released.
The workers also learn “soft skills,” such as how to create a resume, apply for a job and dress for and conduct themselves during an interview.

“I’ve learned a lot – I never thought I’d be learning about fixing computers,” said Terrance Turner, a 21-year-old ward who grew up in San Francisco’s Potrero Hill neighborhood. “And before I was scared to talk to groups of people. Now I am trying to overcome that.”

Would the counties be able to come up with comparable, and less expensive, rehabilitative options for their juvenile population?

“Unnecessary” Medical Treatment Ban Passes Senate Committee

The Senate Committee passed today SB 1079, initiated by Democrat Senator Michael Rubio. The proposal, whose full text is here, would amend the Penal Code to prevent CDCR from providing medical services unless they are “based on medical necessity and supported by outcome data as effective medical care.” The proposition gives the treating physician the discretion whether to provide a certain medical treatment.

This, in itself, is interesting. In the lacuna created by the end of the Receivership health services, questions about the quality and quantity of medical services are bound to arise. And, one of the trends stemming from the financial crisis is saving on health care. But wait, there’s more; SB 1079 provides a list of treatments that it deems “medically unnecessary.” Some highlights follow:

  • The proposal proclaims that mononucleosis and mild sprains “improve on their own without treatment” and therefore will not be treated.
  • The proposal proclaims that some conditions are so severe that they don’t respond well to treatment, and will therefore not be treated, and includes in the list multiple organ transplants and grossly metastatic cancer.
  • Then, we are regaled with a list of conditions that are “cosmetic;” some of these include conventional plastic surgery, but some of them include surgery for the purpose of sex reassignment and removal of tattoos (which could save someone’s life in a prison environment for obvious reasons.)
  • And finally, we’re explicitly told that gender reassignment surgery is not “medically necessary.”
  • Interestingly, the proposal goes as far as to explicitly rule out acupuncture and other methods, expressing not only a preference for Western medicine, but also a rejection of techniques that may be preventative and might actually save the state money in terms of disease prevention.
I’m dismayed, particularly about the classification of gender reassignment as not “medically necessary.” Try and tell a trans woman who is serving her sentence at a men’s prison that reassignment is not essential not only to her health, but to her immediate safety and well being. People do not pursue these operations on a whim; they do so because their gender expression does not match who they really are, and in a prison environment, it can save them from rape and torture. This is proposal, of which Michael Rubio brags on his website, is deplorable and should be protested and fought.

Props to Caitlin Henry for alerting me to this.

Book Review: Inside This Place, Not Of It

A new title from Voice of Witness, Inside This Place, Not Of It, provides a series of narratives based on interviews with incarcerated and formerly incarcerated women. The book personalizes the background stories of women in prison, their experiences within walls, and their difficulties upon release.

The editing is graceful, light-handed, and almost invisible, making the stories ring true and fresh, as if the reader is sitting in the room with the speaker. Most of the time, the editors’ hand is only seen in a helpful introductory paragraph, and the quality and sensitivity of the interviews themselves shines through the stories. There is something very genuine about some women’s willingness to discuss the offense that brought them to prison, and others’ reluctance to elaborate on the more difficult parts.

A few common themes emerge. So many of these stories begin with familial neglect and abuse, set in a general environment of deprivation and discrimination. The balance between being a product of one’s environment and having personal responsibility for one’s actions is delicate, but many of the interviewed women are very thoughtful and reflective, and provide a nuanced understanding of their actions in the context in which they were committed.

The two most alarming aspects of the narratives, for me, involved seldom-highlighted aspects of women’s imprisonment. The first is the truly shoddy health care system. Shocking stories of giving birth while shackled and being separated from one’s baby, receiving a mistaken HIV diagnosis that remained uncorrected for years (and treatment for it), having one’s diabetes untreated and undiagnosed, callous carelessness about the possibility that an inmate might lose all her teeth, repeat themselves throughout the book.

The other aspect is the frequency with which sexual abuse by guards occurs in the prison environment. Many women report sex with guards under physical coercion or lack of choices, and for many of them, speaking up and complaining entails harsh retaliation and isolation from the prison staff as well as the inmates. Popular culture tends to focus on rape and sexual assault among inmates. It would appear that assault and exploitation on the part of staff requires much more serious and urgent attention.

The book also includes a series of great appendices, providing solid, readable information about topics such as the Prison Litigation Reform Act (PLRA), health care issues, and the incidence of prison rape. I can’t recommend this enough as a great, honest window into lives seldom discussed publicly.

Juvenile Curfews?

Recently, the Oakland City Council degerred voting on a proposed juvenile curfew, titled the “Juvenile Protection Act”. Is it a good idea to enact such curfews,and what is their effect on crime?

Some evidence, including this paper by Patrick Kline, suggest that youth curfews overall are effective in reducing crime for the juveniles below curfew age, but have no spillover effects above the curfew age. The study’s population was that of cities with a 1990 population greater than 180,000, and compared cities with municipal codes that included youth curfews. The focus was on serious felonies, as other offenses could be attributed to police behavior rather than to youth criminality. The arrest data, he says–

suggest that being subject to a curfew reduces the number of violent and property crimes committed by juveniles below the curfew age by approximately 10% in the year after enactment, with the effects intensifying substantially in subsequent years for violent crimes.

The magnitude of any biases in the estimates due to spillover effects is difficult to assess. The data do not provide evidence of any spillovers, though given the imprecision of the estimates we also cannot reject modest sized effects. It does seem safe to say that there are probably not any large spillover effects, meaning that curfews do not seem to reduce crime in general, but rather only for the targeted age-groups. This suggests that cities designing curfew legislation should choose the statutory curfew age carefully according to which age-groups are in greatest need of intervention.

However, for Oakland and San Francisco specifically, there are reasons to be skeptical. A recent piece by Mike Males in the Chron was a good reminder of the fact that the US seems to be the only country that its citizens “can shop happily only when everyone under 18 is under house arrest. Not even in London during recent riots – and certainly not in Hong Kong, Tokyo, Rome, Mexico City, Rio de Janeiro, Toronto or other major cities – do police forcibly sweep young people off the streets.”

Today’s op-ed by Selena Teji makes similar arguments. Examining curfews and incarceration, she notes that the plummeting rates of juvenile crime in California are not due to incarceration-driven policy. In fact, she says, “over the last 15 years, California’s youth prisons and local youth jails have released more than 10,000 formerly incarcerated youths onto the streets and in 2010, California youth crime stands at an all-time low.”

Incarcerating, therefore, is not a great idea. Would judicious use of curfews minimize our reliance on incarceration? That’s unclear. But it would seem that, before making a decision about such steps, we should pay attention to actual crime rates, rather than to our perception of crime.

Expanding Operation Boo: Thoughts on the Place of Sex Offenders in a Financially-Strapped System

Today’s news from CDCR are provoking a sigh and a head shake, as we’ve already discussed, ad nauseam, the ridiculous love affair the parole authorities have with Operation Boo here and here. Doesn’t the Division of Adult Operations grow tired of this festival of spook? Is no one critical of the fact that there have been ZERO recorded incidents of molestation during trick-or-treating?

My only comment for this year’s gloomy shaming ritual is this: Sex offenders are the only population who I believe will not benefit from the cost argument. Their lobbying power is, well, nil, and the fact that these baseless operations go on year after year are an indication that the public wants to continue believing that they are all, uniformly, monsters to be monitored and controlled in the face of no evidence whatsoever. We can turn around several important punitive trend, but it’ll be a long time before we reassess the devastation our excessive policies toward a population with extremely low recidivism rates has wreaked on released inmates and their families.

Prison of Peace

Today at Hastings we had the pleasure of hosting Laurel Kaufer, founder of Prison of Peace, a unique program at Valley State Prison for Women in Chowchilla, CA. At the initiative of Susan Russo, one of the inmates, who sought to alleviate the violence in her immediate environment, fifteen women were trained in mediation skills and received mediation certification. Some of these women proceeded to become trainers, and now a hundred and fifty women in prison have skills that enable them to help others process conflict in healthy, empathetic ways. Prison authorities report a calmer, less violent prison. What a wonderful thing it is to provide people in a stressful, violent environment the skills they need to resolve conflicts, conduct peace circles, and listen attentively to others.

Are Gang Members Special? From the California Supreme Court to Pelican Bay

This month the California Supreme Court, presiding at UC Hastings, heard oral arguments in People v. Vang, an assault case involving gang expert testimony. Under California sentencing laws, a gang sentencing enhancement requires the jury to decide whether the defendant committed the offense to benefit the gang. Evidence to this effect is often presented through the testimony of gang experts, usually police officers, who testify as to the norms and practices of gangs in general and the gang in question, to show whether a given defendant’s behavior falls in line with gang-related behavior. In Vang, the prosecutor asked the cop/expert two detailed hypothetical questions based on the facts of the assault according to the evidence, then asking the expert whether an assault under such facts would be gang related. By doing so, argued the defense, the prosecutor thinly disguised questions regarding the actual defendants’ behavior as hypothetical scenarios, effectively substituting the testifying cop/expert’s logic and common sense for the jury’s. The government, on the other hand, argued that it would be difficult to define permissible questions that are abstract enough to require the jury to make a “logical leap” and independently assess the perpetrator’s mens rea, while only being provided with guidelines from the cop/expert about the impact of gang membership on the development of such mens rea.

Setting aside the important criminal justice question of the merits and pitfalls of treating police officers as supposedly impartial ethnographers and gang experts—this practice is, by now, modus operandi in California courts—I would like to suggest that there is an even more fundamental issue at the root of Vang: The assumption that gang members are fundamentally different from other people; that their behavior is governed by special rules inaccessible through common personal experience; and, therefore, special knowledge is required to make sense of them and interpret their lifestyle to the ordinary jury member. This assumption did not originate with modern gangs; it is approximately 150 years old.

In 1865, a doctor named Cesare Lombroso wrote the first medical criminology book, titled L’Uomo Delinquente (“The Criminal Man”). Lombroso’s premise, a novelty at the time, was that criminals were innately different from law-abiding citizens, and predisposed to commit crime by virtue of being “atavistic”, that is, “stuck” in a less-developed evolutionary phase. Lombroso gleaned this predisposition from a series of medical findings involving the measurements of inmates’ skulls (based on the then-popular science of phrenology), their bodily and facial features, tattoos, handwriting, and laughter patterns. Pages upon pages of the book included photographs showing the common features of criminals and distinguishing these “special” features from those of ordinary people.

In the years since 1865, we have come to reject Lombroso’s “science”, both in itself and as a measure for establishing criminality (not before making a lamentable detour into the territory of eugenics for several tragic decades). However, the idea that criminals were special, or somehow different from law-abiding citizens, persisted. Much of the criminology of the early 20th century consisted of ethnographies and observations of criminal groups under the assumption that lack of privilege, living in a given neighborhood, or having a certain subset of role models shapes a unique human being, predisposed to commit crime. This literature—much of which was, admittedly, incredibly helpful for understanding phenomena such as juvenile gangs—suggests that, while some human beings are within the realm of the knowable through common sense and life experience, others cannot be understood without the benefit of special expertise.

Today’s California gang members are the new Lombrosian criminals. To curb criminal gang activity, we have adopted special sentencing rules and uniquely oppressive correctional practices. This special treatment goes beyond the mere development of special investigation practices, evidentiary rules and penal technologies; it includes the development of a new body of knowledge that regards gang members as special, their lives and behavior beyond the reach of ordinary human common sense. But we have done more: By examining gang practices as special and unique, through the lens of clinical expertise, we have relegated gang members to the status of incorrigible specimens, who can only be studied, controlled, governed, and suppressed through special, dehumanizing technologies.

The perversity of this approach is evident these days, as the Pelican Bay inmates plan on renewing their hunger strike on September 26th. The hunger strike, which lasted for 21 days in July and received woefully little media coverage, aimed at changing the correctional policies involved in incarceration at the Security Housing Units (SHU) in Pelican Bay. When inmates are identified as gang members, they are subject to a penal regime that consists of complete isolation for 22 ½ hours a day in tiny cells, their only companion often the blearing sound of a television set. Their daily respite from years of solitary confinement is a 90-minute outing in a barren exercise pen surrounded by 15-foot-high concrete walls and a limited sky view. The entrance ticket into the SHU consists of being identified by prison authorities as a gang member, placing the burden of “debriefing”—disavowing and disproving gang membership—on the inmates themselves, most of whom never find their way out of the SHU. Despite consistent findings by social psychologists about the immense, irrevocable harms of subjecting human beings to a regime of isolation, and despite a federal judge’s comment in 1995 according to which such practices “hover on the edge of what is humanly tolerable”, courts have consistently found SHU incarceration practices constitutional.

To add insult to injury, during the July Pelican Bay hunger strike CDCR officials went on record discrediting the strike because it is “led by gang leaders.” This argument is the epitome of Lombrosian thinking. It implies that the public is to disregard the merit in the striking inmates’ claims against the dreadful conditions of their confinement merely because they are (suspected to be) gang members or led by gang authorities. Why would the arguments against solitary confinement and its devastating effects on the human psyche be any less valid just because the humans making them, and subject to them, happen to be (suspected of) belonging to gangs?

Indeed, gangs are unique organizations. So are corporations, hedge funds, motorcycle clubs, cults, schools, military units, and academic departments. Crime has occurred in each and every one of these contexts, and while criminal decisionmaking has required an explication of the social setting for the crime, it has not deprived us of the sense that juries are capable of understanding these microcosms of human experience. Nor has it implied that any of these settings rightfully denies its participants of human status. While belonging to a subculture has important implications as to a person’s behavior, social context, and range of choices, it does not deny the person’s humanity, relegate his or her behavior to a place beyond the realm of the logically accessible, or make him or her less worthy of basic necessities and rights. Gang members may be more difficult to explicate—and empathize with—than people whose lives more closely resemble that of the average jury member, but they are people, just like prosecutors, jurors, and prison officials. As such, their lives are not completely beyond the realm of reasoning, understanding, and empathy. As we follow up on the upcoming hunger strike, we would do well to educate ourselves on the merits of the inmates’ demands and remember that the measure of a society is the dignity with which it treats its weakest members.