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Wednesday, March 24, 2010

Prisoners' rights and public employee unions

Jonathan Simon has a nice post on prison conditions in California in which he observes that California politics have not shifted sufficiently to permit wholesale reform of the culture of incarceration that has destroyed California's budget and blighted the lives of low-income communities. Jonathan emphasizes the political incentives that motivate lawmakers to support fiscally suicidal levels of incarceration, implicitly attributing these incentives to the public's support for vindictive penalties.

But Jonathan ignores one political factor that might be changing in California -- the power of Don Novey's the California Correctional Peace Officers Association (CCPOA). As the Economist notes here, the CCPOA have been one of California's most potent interest groups, and they have been a powerful lobby for "three strikes, your out" and other senseless sentencing policies that provide jobs for their members. But Novey's union may have over-reached: The wages and benefits of prison guards have reached such insane heights -- the average member of earned around $70,000 a year and more than $100,000 with overtime, with retirement starting at 50 years of age at 90% of salary -- that lawmakers may finally start to revolt.

In any case, the influence of the corrections officers union is so obviously pernicious in California that it might lead legal scholars to revive the old Wellington-Winter hypothesis that public employee unions enjoy excessive political power because of the inelasticity of demand for their services and their high levels of political organization. There is a tendency among Left-leaning academics to see unions as the unadulterated source of beneficial egalitarianism. When, however, such unions control services disproportionately consumed by low-income persons -- incarceration and education, for instance -- they can be deeply inegalitarian. I have commented earlier that the recession is likely to reduce the power of public employee unions in New York City. If the recession operates in this way to oust the CCPOA from their current privileged perch in state politics, then even this economic cloud will have shown a glimmer of a silver lining.

Posted by Rick Hills on March 24, 2010 at 11:54 AM in Current Affairs | Permalink


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Since Prof. Slater has explicitly invited me to "speak for myself," I'll, uh, do so. I'll start with a mea culpa: I assumed relatively inelastic market demand for prison guards, such that a "closed shop" would represent a virtual monopoly on the supply of labor for the union. Of course, that fails to note that reforms that reduce the prison population (which I support) would in fact reduce market demand and thus reduce the union's ability to demand wage increases.

So perhaps, given that Prof. Hills and I agree on the need for substantive reform in the criminal justice system to reduce prison populations, the market equilibrium salary for prison guards post-reform is less than $70K, and to that extent I will concede the point. But that raises the question of how to create reform. While I'm certainly comfortable with reform by judicial fiat (which is where California seems to be going), legislative reform would probably be preferable from a democratic standpoint. This would require somehow breaking the "iron triangle" that both Prof. Slater and I note that Prof. Hills somehow forgot existed. I would take the position that of the three sides of the triangle (or legs of the stool, or whatever metaphor you want to use), that Republican lawmakers are the ones whose power can be eliminated at the minimum cost of human misery. I am honestly neutral as to whether those lawmakers are replaced by reformist Republicans or by Democrats not beholden to the union.

And while I certainly appreciate being lumped in with the professoriate, my one lonely little forthcoming publication won't be enough to get me onto the meat market this November.

Posted by: Matthew Reid Krell | Mar 26, 2010 12:51:49 PM


While I appreciate your kind words about my book, I'm now not entirely sure what the point of your original post was. Was it about how bad rules like "three strikes" get passed in California? If so, I don't think it was evasive or even stolid of me to note that you had only identified unions as a problem and omitted the other two parts of the "iron triangle" that the Economist described. And I honestly don't know which of these groups is most influential.

Your point could be a broader defense of the W & W thesis that public sector collective bargaining inherently gives unions too much political power and that therefore collective bargaining in the public sector should be banned, full stop. But you didn't make that conclusion.

In my first response to you, I said that the W & W thesis did have some force in some situations, more typically in cases in which the relevant polity was smaller. (You may have missed that in your zeal to claim tunnel vision in the pro-union professoriate). But then I added that at least for me (and a clear majority of states in the U.S.), that concern is not sufficient to ban collective bargaining.

So if that's what you're getting at, what's your conclusion? Would you go as far as W & W do: collective bargaining should be banned in the public sector? Is the lesson of the California situation that we should remove collective bargaining rights from these guards? From other public employees? From all public employees? If you wouldn't go that far, would you institute some other sort of specific legal reform to blunt the effect that W & W describe for the prisons guards? For other public employees? In short, what specifically does it mean, to you, "to oust the CCPOA from their current privileged perch in state politics"?

As to compensation, you are basically responding to Matthew, and I'll let him speak for himself. I will add one point, though, again about actual legal rules. In at least a plurality of states the public sector labor statutes specifically require that interest arbitrators, in resolving bargaining impasses, look at exactly the factors you list in setting contract terms, especially in setting wages and other forms of compensation (examples provided on request). Also, many statutes list as a factor to consider the amount of pay it takes to get and retain competent employees. So in that sense, the question of whether somebody would do the job for less than $70,000 is relevant.

California is complicated, in that at least some binding arbitration provisions there were held unconstitutional under the state constitution (I won't bore you with the reasons here, unless you want). The point is that the law in most places may in fact be pretty close to what you think it should be.

For the record, I oppose "three strikes" rules too. And unions have done other things I think are bad. But I would much prefer to discuss specific legal rules and ideas for reforming same than debate who in legal academia is ballsy enough to dare criticize a union of prison guards -- who, as we all know, are simply oh so trendy in the salons of the liberal elite. Because otherwise I might start noting that you never say anything GOOD about unions in your posts. And that type of sparring would be no fun. Because it would merely be baiting, not debating.

Posted by: Joseph Slater | Mar 26, 2010 10:23:38 AM

Yes, Darleen, I have reviewed some of these "three-strikes, you're out" case files. Take, for example, the case of Larry Fisher , a guy who committed three unarmed robberies -- one of his grandpa -- in which no one was injured and in which he took, at most a few hundred dollars: In 1994, Washington State's "three-strikes, you're out" policy imposed a life sentence on the guy.

What can possibly be the just basis for imposing such a vicious sentence on a guy like Larry? Do you really believe that he deserves a life sentence and that we taxpayers should end up paying for his care and confinement until he reaches his dotage? I doubt -- or at least hope -- that you, Darleen, are not so paranoid or vindictive as to believe that Larry deserves his sentence for using his extended finger in his pocket to hold up a pizzeria, to the scorn of onlookers and the injury of no one. So I can only assume that you believe that it is acceptable deliberately to impose an unjust sentence on some individuals in order to make absolutely, positively sure that no truly dangerous criminal accidentally evade a stiff sentence when they deserve it.

This deliberate abandonment of individualized justice for some in the delusional pursuit of total security strikes me as truly "cynical" and "nasty," to use your terms. Why not let judges -- who are, after all, elected -- use their judgment to tailor punishments to fit the actual criminal records of the defendants?

(By the way, my readers -- both of them -- will observe how difficult it has become for me to be the official conservative Republican on this blog in the current political environment. I write my regular post criticizing public-sector unions to tweak Joe Slater and end up being attacked for being soft on crime because I believe that the nature of someone's offenses actually matters when they are sentenced. To paraphrase Tammy Wynette, sometimes it is hard to be a Republican...)

Posted by: Rick Hills | Mar 26, 2010 9:01:19 AM

"three strikes, your out" and other senseless sentencing policies that provide jobs for their members

Excuse me, but what a cynical, nasty remark. Maybe you should review the case files of 3 strikers (with rap sheets inches thick) and tell us which ones you want released back into society to continue their predation.

I hold no brief for the union, but there are people who easily earn a one-way ticket out of society.

Posted by: Darleen Click | Mar 26, 2010 12:54:27 AM

Both Matthew's and Joseph's comments nicely illustrate my point: It is near-impossible to induce academics to criticize a union, even when the union's politics are detestable and its fiscal effects, profligate.

Joseph stolidly refuses to concede that the CCPOA's influence is pernicious, quarantining my adjective in scare quotes, despite the CPOA's extraordinary record of lobbying aggressively for stricter prison sentences to create more job security for their members -- literally converting human beings into a consumption good. Instead, Joseph evasively brings in another bad actor (Republican lawmakers in California) to avoid actually having to concede that a public-sector union is part of the problem. For my part, I have no qualms about condemning the obstructionist CA Republicans as obviously pernicious -- (sans scare quotes). Like their national counterparts, the state Republicans have adopted the lunatic position that they must destroy the village (budget) to save it and veto every revenue-raising device that could keep CA out of receivership. So a pox on both of their houses, say I. But politicians cannot cause harm without interest groups to keep them in office, and the CCPOA is the strongest sustaining force for the iron triangle that the Economist describes. (Surely, Joseph does not cavil that the CCPOA is stronger than prison builders in this respect!)

Joseph's and Matthew's comments illustrate the crux of the problem with pro-union academics: Reluctant to criticize a union's wage demands, they find it impossible to provide any definition of a "just wage" connected to fiscal reality or market demand. Instead, they fall back on some free-floating notion of desert severed from what taxpayers or bondholders can reasonably be expected to pay. Yes, being a prison guard is dangerous hard work. So is being a tightrope walker, a professional mountain climber, a stunt car driver, and a performance artist who swims with hungry sharks: Are they all entitled to high wages, regardless of market demand, need for their services, or opportunity costs of their labor? Matthew adds the truly weird statement that somehow public-sector bargaining is constrained by "market forces," conveniently ignoring the fact that, short of exiting the state entirely, California taxpayers cannot "shop around" for another prison provider that charges more reasonable prices for prison services. While I am a big fan of Tiebout's locational economies, I would hardly call competition between, say, Arizona and California for taxpayers a really efficient intergovernmental "market." Of course, there is always the "political market" for prisons -- but the whole point of my post is that the disproportionate influence of the CCPOA on politicians' incentives has distorted that market.

By contrast, I would think that assessing the pay of public sector workers ought to take into account factors that Joseph and Matthew ignore -- (a) the pay of analogous workers in the private sector (which would presumably suggest the opportunities foregone by prison guards when they accept public employment), (b) the tax burden or debt necessary to sustain such wages, or (c) the opportunity costs of cuts in other parts of the state budget to accommodate wages without taxes or debt. By these measures, I suggest that prison guards are overpaid. That Joseph -- a renowned expert in public-sector unions and the author of the definitive history on the rise of public sector unions before the 1960s -- would simply ignore these considerations in defending the CCPOA's wage bargain suggests the obstacles faced by right-wingers like me in trying to arouse among legal academics a wee bit of skepticism about public-sector unions.

Not that I mind: Sparring with Joseph about unions is one of the many privileges of being the official conservative guy on this blog.

Posted by: Rick Hills | Mar 25, 2010 9:41:45 AM

Joseph and Rick together raise an interesting question: how much is being a prison guard worth? Part of the point of collective bargaining is to enable market forces to be able to determine the value of work without reference to the leveraging power of aggregating capital (or rather, by aggregating labor as a countervailing influence).

So, the question is, how much SHOULD a prison guard earn? We are asking for someone who doesn't require a tremendous amount of education (although requiring some education seems sensible from a policy standpoint, there is no particular educational requirement to be able to perform the job functions at a minimum facility); someone who is willing to face the almost-constant threat of physical violence; someone who can deal emotionally with the social fact of their participation in a fundamentally dehumanizing (but also fundamentally necessary) process; someone who can face hatred and scorn from not only their charges, but their charges' visitors; and someone who can be relied upon to be ruthless in preventing violent outbreaks, perhaps even with the preventive surgical application of violence themselves, while avoiding descending into brutality, all while exercising the judgment necessary to walk the line between those two positions. Not to mention the physical requirements.

I would say $70,000 with overtime is probably a trifle low. But then, that wouldn't serve Prof. Hill's purpose, which is to demonize a union. While unions are by no means a source of unalloyed good, their decline since the 1970's has corresponded very strongly with a decline in the condition of the working class. I don't know if there's a causal relationship, but it is certainly very suggestive. I'm also troubled by his choice to offer the imprimatur of the Economist to his analysis that actually strips away most of the magazine's approach - namely, that the unions are only one particular source of power that leads to the continued development of the prison-industrial complex in California - and that the rest of the sources of power, surprisingly enough, are "[Right]-leaning" institutions that would undermine Prof. Hill's efforts to, again, demonize the Left.

There's plenty of room to criticize CCPOA's role in the process without making it a cheap political hit piece.

Posted by: Matthew Reid Krell | Mar 24, 2010 8:12:19 PM

Oh, I'll bite. First, as someone in the public sector labor law field and the labor law field more generally, I don't know anyone who sees "unions as the unadulterated source of beneficial egalitarianism." And even us "Left-leaning" types think that the Wellington-Winter argument has some force in some circumstances -- although we generally don't think it's a sufficient reason to bar all public employees from bargaining collectively, as W & W did.

But I was intrigued by the idea that a union of prison guards -- whose numbers are surely much smaller than even other public employee unions (teachers, police, firefighters, etc.) -- could have such power to dictate state policies in a state as big as California. Usually the W & W thesis has more force in much smaller and localized elections and political bodies where the number of union members is a greater percentage of the electorate.

Then I read the Economist link and saw that it wasn't really just the unions whose influence, "obviously pernicious" or otherwise, was involved. Instead, it was "The iron triangle—union, prison builders and Republican lawmakers" who were responsible for these policies. So I'll add my hope that the recession will reduce the influence of the other two of these groups.
And for the record, I wouldn't take a prison guard job at $70,000 / year, even with the opportunity for overtime pay.

Posted by: Joseph Slater | Mar 24, 2010 2:08:40 PM

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