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† Criminal InJustice is a weekly series devoted to taking action against inequities in the U.S. criminal justice system. Nancy A. Heitzeg, Professor of Sociology and Race/Ethnicity, is the Editor of CI. Kay Whitlock, co-author of Queer (In)Justice, is contributing editor of CI. Criminal Injustice is published every Wednesday at 6 pm.

Prison Privatization Part 1, Another Cautionary Tale from California
by nancy a heitzeg

For some time now,  we at Criminal InJustice have been asking what the real end game of the “bi-partisan” prison reform was going to be. Was the “Right on Crime” Right really interested in reducing mass incarceration? Are “Law and Order” Democrats ready to turn their backs on the harsh Drug War mandatory minimums that were promoted a nd passed on their watch? Given the opportunity to really reduce the size and scope of the prison industrial complex would either side take it? Would they reject th elkong lingering influence of ALEC inspired legislation? Or would this be just another shell game, where the public costs of mass incarceration are funneled instead towards private sector profit, with little concern for remedying the inherent race, class, gender, and sexual biases of the criminal legal system?

We suspected the latter, and early evidence out of California suggests that this is the case. As, and as with all aspects of the contemporary prison industrial complex, the path California takes may be the bell weather.

It is California – the Golden Gulag – that brings us the expansion of the modern pic – driven by a draconian three strikes law ( just recently revised), the proliferation of gang legislation, correctional spending that far outstrips educational investments, excessive use of solitary confinement and SuperMax conditions, and a powerful police officer and prison guard union that stands in the way of any meaningful efforts to reduce mass incarceration. (See The PIC Old School/New School 2 for a complete discussion of these issues and their impact on the California “correctional sysem”).

California engineered a prison-building and filling project that is “”biggest in the history of the world”,  which until recently imprisoned in sheers numbers more than any state. More prisoners than Louisiana, than Florida, probably still more than Texas even if we count those transferred to county jails — nearly a quarter million locked away. Numbers so excessive they made the SCOTUS blink and declare that the extreme over-crowding must be reduced by as many as 30,000 inmates. This over-crowding is especially egregious at the Central California Women’s Facility at Chowchilla, the world’s largest prison for women, which is currently housing nearly double capacity. And although California has not conducted an execution in 7 years, it still retains – by far – the largest death row in the nation.

Almost three years ago the Supreme Court ruled that the California system was so over-crowded that it amounted to cruel and unusual punishment. The case, Edmund G. Brown, Jr., Governor of California, et al., Appellants v. Marciano Plata et al., centered on shortage of health care and the resultant de facto denial of mental and physical treatment. An average of one inmate per week died as a result of malpractice or neglect. (Please see Prison Health Care as Punishment for an overview and Shumate v. Wilson for a specific look at health care issues for women in California’s prisons).

The Court affirmed a federal decree requiring state officials to reduce the prison population to 110,000, which is 137.5 percent of the system’s capacity (At the peak of over-crowding, the system was at 200% capacity, even with some 9000 prisoners housed out of state. Inmates were housed in bunks in gyms, hallways and any extra nook and cranny). California is required to reduce the population by 30,000 inmate< by July of 2013.

An opportunity, right?? A chance to reduce the prison population with relatively little political fall-out — just following SCOTUS orders – with the support of a Democratically controlled State Assembly.

Did Governor Jerry Brown take this opening and put action to the rhetoric of “criminal justice reform”?

To the contrary,  Brown tripled down on incarceration with a dangerous new twist. Since the  Supreme Court order, Governor Brown has resisted in every way possible and engaged in an elaborate shell game designed to maintain or increase actual incarceration rates.

Some low-lights follow.

 Legal Resistance: Appeals and Vetoes 

Governor Brown has returned with complaints to the Supreme Court at least three times. The first two trips are detailed in ThinkProgress, August 2013:

But Gov. Jerry Brown is undeterred, and on Friday, he asked the Supreme Court for full review on the merits. It was the U.S. Supreme Court that ordered the state in 2011 to relieve overcrowding so severe that it violated the Eighth Amendment. At the time, the court set a goal for the state to reduce its population to 137.5 percent of capacity. The state has still not met that goal, but Brown has decided the state doesn’t have to. In January, with prisons still well over capacity and mental health treatment assessed at well below acceptable levels, Brown declared that the “prison emergency is over,” and that any further efforts toward complying with the court ruling would “gold plate” the state’s prisons. Since then, he has resisted calls from federal judges overseeing the case to implement recommendations.

Brown’s claim the the crisis is over rings hollow in light of on-going physical and mental health issues abound in the California prison system. Failure to adequately provide inmates with health care was the impetus of course for the original Supreme Court case. Too many to fully chronicle here, but few examples illustrate the on-going violations. Last summer, for example, a federal judge ordered the transfer of more than 2o00 inmates due to an outbreak of Valley Fever. The epidemic was associated with at least 18 inmate deaths and even more chronically debilitated. A recent investigation from the Center for Investigative Reporting revealed that scores of female inmates underwent sterilization while incarcerated, which is supposed to be prohibited for California prisoners, between 2006 and 2010. And of course, the State was the site of yet another summer long hunger strike in protest of extensive and extreme conditions of solitary confinement. From Prisoner Hunger Strike Solidarity:

“On July 8th 2013, more than 30,000 California prisoners initiated an indefinite hunger strike in response to the CDCR’s failure to meet their 5 Core Demands. 60 days and 1 death later, strikers suspended the strike, and California legislators committed to hold public hearings.”

In addition, Brown has made several trips to the Federal Appeals Court which is over-seeing the inmate reduction, asking most recently for a three year delay., which was denied. Beyond this, Brown has rejected various proposals that would change the State’s sentencing guidelines, recently vetoed legislation that would  have reduced sentences for defendants caught with cocaine, heroin and various other illegal drugs. This, despite evidence from critics that additional prisoners could be released with no threat to “public safety”.

But critics say the state incarcerates many prisoners who pose no real danger to the public, including elderly inmates and the terminally ill. And they argue that the governor could safely decrease the prison population by allowing more inmates to earn reduced sentences for good behavior.

James Austin, president of the the JFA Institute, a national criminal justice research group, testified in the state’s overcrowding case that California could safely release 22,758 prisoners. Using a computer program developed by the state, he determined that 40 percent of all California prisoners were unlikely to return to prison within three years of their release. Letting them out early would constitute a “safe and effective” way to meet the population target, he remarked in his testimony.

In addition, as a report released on Monday by Stanford Law School and the NAACP Legal Defense and Education Fund details, 1,000 California prisoners who had been behind bars for non-serious, non-violent offenses have been released since last November under a new state law, with a recidivism rate of 2 percent compared to the state average of 16 percent, and there are another 2,000 prisoners awaiting release under the program. No excuses.

Prisoner Shuffling 1: State Prisons to County Jails

 California still needs to reduce the state prison population by another 10,000 and many questions remain as to over-crowding at the county level and at the women’s facilities. (Largely forgotten in this shuffle are the state’s nearly 6500 female inmates. The state’s response here is the shuffling of female inmates into other already over-crowded state institutions.) Their solution, Assembly Bill 109 (AB109) also referred to as “prison re-alignment’, thus far seems to be one of those “Shell Games” CI warned of.

From the Public Policy Institute of California, “Corrections Realignment: One Year Later”:

In 2011, California changed the way it manages low-level felons convicted of “nonserious, nonviolent, nonsexual” offenses. It redirected 30,000 recently convicted offenders who would have gone to state prison to county jail, shifted the after-prison supervision of about 50,000 offenders from state parole agents to county probation departments, and revised its procedures dealing with sentencing, good-time credits, and parole…

As might be expected, county jails are feeling the effects of realignment, which has transferred some 30,000 offenders to county supervision. Although the jail system in California has a rated capacity of about 76,000 and an average offender population of 71,060, many individual jails are already crowded (Loftstrom and Kramer 2012).

The over-crowding, then, is largely being shifted from the state to county level, from state prisons to county jails. Counties have a variety of options for dealing with these additional inmates, including referrals to the new privatized profit-driven community correctional complex. The tendency, however, has been continued incarceration rather than release.  17 counties are already under separate court-orders to reduce populations and the recent pressures have lead to many counties increasing jail space.

Since jails are meant for short-term detention, their amenities, as it were, are even fewer than those offered in prisons such as work programs or outside yard space. So the state-wide problems may simply be replicated or exacerbated at the county level. As perhaps a harbinger of more trouble to come, a legal suit alleging that Fresno’s jail is providing unconstitutionally inadequate health care was filed in December 2011.

Prisoner Shuffling 2: State Prisons to Privatized Prisons

Governor Brown’s latest move may be the most ominous. He recently signed two separate deals with private prison providers CCA and GEO Group to house additional prisoners, making California one of the nation’s leaders in its reliance on private prisons:

CCA alone holds more than 8,000 California inmates at facilities in Arizona, Mississippi and Oklahoma. The company’s new deal with California expands the state’s prison capacity by an additional 2,300 prisoners, and California’s contracts with the GEO Group add another 1,400. Along with an existing private prison contract in the state, the new contracts bring California’s total number of private-prison inmates to about 12,300.

California is now CCA’s second-biggest customer, providing $214 million to the company last year, according to HuffPost’s analysis of the company’s finances. The state is surpassed only by the federal government, which paid CCA $752 million last year, a figure that accounts for contracts with three agencies — the U.S. Marshals Service, the Federal Bureau of Prisons, and Immigration and Customs Enforcement. The state of Georgia, the company’s third-largest client, paid $99 million last year.

In addition, Brown has returned again to the Supreme Court in an effort to overturn a Federal Appeals Court bar on his plans to sign further contracts to house additional California inmates in private prisons out of state. This, again, is an effort to forestall actual reductions in the state’s exploding prison population. It is perhaps not incidental that both CCA and GEO have contributed tens of thousands to Brown’s political campaigns and issues he supports.

Perhaps the most dangerous aspect of this new privatization scheme is the collusion with old opponents.  Previously, in California and elsewhere, private prison expansion has been stymied by correctional officers’ union who resisted because of CCA and GEO’s reliance on non-union labor. Not any more, and opponents of mass incarceration fear this is a harbinger of additional expansion and continued mass incarceration.

Such concerns stem in part from the fact that the arrangements could deprive prison reformers of an unlikely but potent ally: the prison guard union.

For years, California’s prison guard union, the California Correctional Peace Officers Association, served as a powerful check on the growth of the private prison industry. The union spent millions to support the campaigns of political allies, and launched media attacks that were widely seen as lethal to the political aspirations of opponents.

Now the union and the private companies are partners. Brown’s deal with CCA stipulates that the state will staff the private facility with union guards, effectively creating a detente between the former foes. When Brown first announced the deal in August, the union’s leader, Mike Jimenez, joined him on stage in a show of solidarity.

Pay close attention to this development. The merger of correctional officer unions with the private prison industry unites two powerful – and once oppositional – forces both of whom have intense economic interests in maintaining/expanding the current situation of mass incarceration. Watch too for the Supreme Courts’ take on Brown’s request to use out-of-state private prisons to resolve California’s in-state constitutional crisis re over-crowding. If they allow him to do this, it creates a precedent that further erodes the already miniscule rights of inmates to seek  meaningful redress for “” conditions of confinement.

 Watching the Trends

The response of Governor Brown to the over-crowding crisis in California prisons is disappointing to put it mildly. Given a pathway for reducing trends in incarceration in favor of meaningful alternatives, Brown has instead chosen the shell game, shifting and shuttling prisoners from state to county, from public to private prisons. The renewed trend towards private prisons  – in conjunction with their alliance with unionized public employees – is perhaps the most dangerous aspect  of the California response.

For whatever hell publicly operated “corrections” may bring, the privatization of prisons and related correctional services magnifies every trouble one thousand fold. More on that next week.

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