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Friday, August 14, 2009

Text Book on Mass Incarceration: Coleman/Plata v. Schwarzenegger

The massive 750% increase in the California prison population since the mid-1970s is the result of political decisions made over three decades, including the shift to inflexible determinate sentencing and the passage of harsh mandatory minimum and three-strikes laws, as well as the state’s counterproductive parole system.  Unfortunately, as California’s prison population has grown, California’s political decision-makers have failed to provide the resources and facilities required to meet the additional need for space and for other necessities of prison existence. (Opinion Order page 181)

The 184 page opinion and order of the special three-judge federal court in the matter of Coleman v. Schwarzenegger and Plata v. Schwarzenegger (Coleman) is a remarkable document in the history of federal courts and in the history of contemporary penality.  I teach an upper division undergraduate class on punishment and society next Spring and I may try to use the opinion as the core textbook for the class (along with an extraordinary record produced in a 19 day trial last winter and spring).  For starters, Coleman is an indictment not simply of a prison system but of a regime of governance many of us have come to call “mass incarceration”.   While careful not usurp the role of the state in setting its own penal philosophy, the court depicts an unremitting policy of rigid and lengthening sentencing has been pursued for three decades leading to a 750% increase in the prison population combined with a steadfast refusal to acknowledge or remedy the human costs and requirements of this extraordinary social policy experiment.

Second, Coleman provides an anatomy of a distinctive form of late modern penality that appears to be nearly unique to California (and perhaps to some of the federal government’s war on terror facilities).  While California is near the national norm in the rate at which it incarcerates, and apparently for the length of initial prison sentences (although I think that misstates the reality for violent crime), the Coleman court cited consensus among the experts that California’s approach to incarceration and post-incarceration is extreme and perhaps unique.  There are two components of this penality; the literal use of the prison as a warehouse with little actual intent to rehabilitate or even biologically sustain the human inmates, and the creation of a parole “supervision” system that is little more than a low cost, high speed system for cycling people back to prison for minor offenses and some 17,000 “purely technical” violations (out of a total of around 74,000 a year returned to prison without a new criminal charge). 

The warehouse component is truly shocking.  Many of us have used that term glibly to describe a system that has little ambition beyond incapacitating its residents from committing crimes on the outside.  In California, that irony was turned into policy, with prisons built with the intention that they could not provide adequate space for medical and mental health services at even 100 percent of design capacity, and which have operated at far above that level for decades.  This problem has been compounded by the fact that, in order to save time and money, the state built new prisons on the grounds of its old prisons, creating something more like penal complexes that exacerbate the already difficult problems of providing mental health and medical care (the subject of the underlying Coleman and Plata litigations), as well as environmental problems like water use and sewage.  (Indeed, the state now proposes to remedy the current crisis by building even more cells inside the grounds, a process known as "infilling").

These are prisons only in the nominal sense that they are called that, but they have lost almost any semblance of the penitentiary project that was born in the United States nearly two hundred years ago with the opening of the Eastern State Penitentiary in Philadelphia.  There has always been a glaring gap between the promise of the penitentiary and its practice, what David Rothman memorably described as “conscience and convenience” in his 1980 book of that title.  But in California conscience dropped out altogether, and its in place, a clumsy kind of control that has come to rely upon blunt racial classifications (“no black visitors today” was a sign that greeted one of the attorneys in the case as he visited a California prison last week) and systematic use of lockdowns (prisoners locked in their cells 24/7 sometimes for weeks at a time) that render any activity other than bare life almost impossible (yes, here the comparison with “camps” as drawn by contemporary political theorists like Giorgio Agamben and Judith Butler is salient).

Finally (for this overlong if delayed post), Coleman provides a legally rigorous tour of the extraordinary barriers that Congress has put in the way of federal courts enforcing human rights in state prisons through the Prison Litigation Reform Act of 1996.  The law is important evidence of why this is not just a penal aberration (why have insisted on hauling around the clumsy term governing through crime, whenever I try to talk about this stuff) but a distinct governmental logic.  PLRA was designed to insulate state prison systems from prison condition lawsuits at a time when mass imprisonment was being implemented all over the country and encouraged by earlier federal legislation by creating a host of obstacles to prison litigants.  Coleman involves the core of the law’s concern with keeping prisons full.  Setting mass incarceration aside as a special practice to be shielded from constitutional rights enforcement (a rehearsal for Congress role in the war on terror), the PLRA singles out release orders as requiring special procedures and burdens.  A three-judge court must be established.  The court must find that over-crowding is the “primary” cause of the constitutional violations.  The court must find that no other remedies can reasonably be expected to reduces the crowding problem or relieve its obstruction to remedying the underlying constitutional violations.  After going through all those moves, the court must give further consideration to the effect on public safety of any remedy involving prisoner releases.  In my view the three-judge court lays a very strong set of findings down on each of these, with a substantial record to back them up, and in the end compromises considerably its own judgment as to what population would assure constitutional compliance (they recognize the case for insisting on a cap at 100 percent of design capacity but set the target for compliance at 137%).  Thus while this is in many ways a California story, it is worth recognizing that Congress has for more than a decade inserted itself into the proliferation of mass incarceration, by partially stripping the federal courts of jurisdiction to enforce the constitution in prisons.

Much of the drama surrounding the order when it was announced last week has slipped away.  That is largely because it seems easy to imagine that the state can muddle through this legal crisis, just as it has many times before.  The differences between the numbers set by the three-judge court (some 46,000 fewer inmates over two years), and the numbers discussed in the budget compromise (some 27,000 fewer inmates over one year) are not far apart.  In the end that is too bad.  We will need a much bigger crisis to get us to reconsider mass imprisonment in California.

Posted by Jonathan Simon on August 14, 2009 at 02:49 PM | Permalink


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