By Catherine Campbell
(Author’s note: This is part two and the last section of an article that began in the November issue of the Community Alliance. Part one covered the period of California prison history until August 1971, when the tumultuous events of the 1960s culminated at San Quentin in the violent deaths of several guards, inmates and George Jackson, the author of Soledad Brother and, to some, a revolutionary hero. Part 1 can be read here)
Savvy state politicians, aware of the winds that were blowing, began to sell the criminalization of previously innocent behavior, longer sentences and the construction of fortress-like, highly militarized prisons in remote areas of the state where no one important would see them until they were built. Nor would rural people have sufficient sophistication to resent the intrusion of prisons into their lives; they would believe the deceitful promise of local jobs.
After the dramatic and traumatic events of 1971, the rate of incarceration per 100,000 began its upward climb. Initially, it was justified by a genuine rise in the crime rate. Then there were the riots in major cities and the reactive “War on Drugs.” For the first time, a President, Richard Nixon, ran on a law-and-order platform. Nixon’s blatantly racist call to arms was echoed in California, where he captured the state by a thin margin.
At the same time, and outside the public arena, parole became a way of increasing control over people caught up in the incarceration cycle, dooming the majority to return to life behind bars. Parole was initially a beneficial employment program for just-released inmates. In California, there was one parole officer for the entire state.
In its current incarnation, parole is a leash around the necks of convicted persons: They are required to report to their parole officers, and they must endure testing for drug use, including alcohol consumption. The most minor of offenses, even standing on a street corner with an old friend gang member or drinking a beer, can land one back in prison. Today, 67% of the people in prison have violated a parole condition.
Governor Reagan fostered a much lower rate of parole-related recidivism than his successor, the “liberal” and “small is beautiful” Jerry Brown, who—inspired by the politics of crime as practiced by Nixon—created the highest rate of recidivism in California history to that date.
The California prison construction boom began in the second administration of Brown and was brought to its massive peak by Deukmejian. In 1978, Brown began to pump out press releases bragging like a schoolboy about the number of people incarcerated in California, an increase of about 8.7% for a total of 21,325. The rate per 100,000 increased to 92.5. Also in that year, the rate of recidivism had the biggest jump since 1972; all of these were parole violators. Brown said he was locking up more “dangerous criminals” than any prior governor.
At about this time, politicians and prison administrators began to make political hay about prison gangs. Some of these gangs were prison revolutionaries, others dangerous men with a shared code of honor and violent animosities. That some gang members were extremely violent is undeniable, most notably the deeply divided and revengeful Mexican prison gangs.
Alarmed by prison violence, the guards began to consolidate their impotent union and insist on repressive measures to protect staff. Headquarters at the Department of Corrections began to look for ways to control prison gangs.
By the late 1980s, massive Security Housing Units were built at Folsom, Corcoran and Pelican Bay on the California-Oregon border. In these repressive and tortuous units, possible gang leaders were put in solitary confinement for the rest of their prison terms. To get out, they had to snitch on other gang members in a process called “debriefing.” These are the inmates who, finally, after decades of such treatment, are using hunger strikes to call the world’s attention to their plight.
Guards solidified their collective power through the CCPOA under the charismatic leadership of Don Novey. Since the late 1980s, all criminal justice issues have been seen through the prism of the CCPOA, turning California criminal justice policy further to the right: harsher punishments, increased criminalization and retribution. The CCPOA had a decisively powerful voice in the choices of Pete Wilson and Grey Davis as governors.
The CCPOA began the testosterone-fueled militarization of prison staff. Guards began to trim down and buff up. No longer were they going to look like the guards in movies out of the 1950s. From an early issue of the CCPOA magazine: “To accomplish this goal, literally thousands of man-hours have been spent by these dedicated [guards] in training, such as: rappelling, weapons training with pistol, rifle, shotgun, automatic weapons, night firing, chemical agents of many types, entry techniques, assault techniques, movement, tactics, riot control, arrest and detention procedures, emergency medical treatment, physical training and conditioning.”
The CCPOA financed the development of the victims’ rights movement. Together, the CCPOA and the victims’ rights people have influenced every judicial appointment since the 1980s, leading to an increasingly conservative judicial bench eager to imprison. The CCPOA also helped secure passage of punitive legislation, including the three strikes law, which put another 15,000 people in prison for life, many for minor crimes. The theory used to justify such laws was “incapacitation”—the removal of repeat offenders from society to prevent further crimes, much like cutting off the hands of a thief.
As important, in 1977 the Legislature passed SB 42, a sentencing law favored by prison reform advocates as well as right-wing conservatives. The law put into place fixed sentences for various crimes, stripping judges and prison administrators of the power of discretion in sentencing. As longer sentences became politically advantageous, more politicians were elected based on promises of sending people to prison for longer terms.
Weighing in on this process were the feminists, who wanted child abusers and rapists sent to prison for decades and strapped with registration requirements and ankle bracelets for life. As a consequence, prison terms became longer and the restrictions on the lives of convicted persons more onerous. A man whose pregnant wife is 16 years old will serve years in prison and then be forced to register as a sex offender and live well out of the way of schools, often in homeless encampments.
As California’s attorney general, Deukmejian made his criminal justice philosophy known. In a speech at the Fifth Annual Roger A. Traynor Lecture to judges in 1980, he said, “In addition to general deterrence, mandatory prison laws serve another, significant purpose—incapacitation. In contrast to deterrence, we can estimate the positive impact, in terms of reducing crime, of putting actual offenders in prison away from society.”
The highest rate of incarceration, whether through the politics of criminalization and sentencing, or the manipulation of parole for political purposes, was under the governorship of former Attorney General Deukmejian, a true believer, and the apostle of right-wing politics in California. There was nothing fraudulent about “the Duke.” From day one, he wanted to build more prisons, and he did.
Deukmejian revised to the right the Californian New Deal, which took place under Governor Pat Brown, when highways and aqueducts were built, and instead constructed prisons and their institutional necessities: jails, probation and parole officers, victims’ rights services, the essential bureaucrats and the many lawyers employed by an increasingly draconian system of punishment and banishment. Deukmejian was the most un-charismatic but ruthless of governors, and he was free to wreck his havoc on the state by his lack of presidential ambitions. Being the governor of this state was an end in itself.
When the Duke was inaugurated in 1983, California taxpayers had already agreed to pay millions for new prisons, most built with lease revenue bonds that lined the pockets of Wall Street while saddling California taxpayers with massive debt. During the Deukmejian administration, lease revenue bonds continued to finance prison construction.
During Deukmejian’s administration, nearly two dozen prisons were built as the inmate population skyrocketed from about 20,000 to more than 160,000 and, like all big political decisions, the massive prison construction program had unforeseen consequences. As spending on prisons ballooned from well under $1 billion to nearly $6 billion, and as prison payrolls expanded from 9,000 to 45,000 employees, membership in the CCPOA soared, and it became, thanks to the political genius of Novey, the state’s most powerful union.
Novey didn’t support Deukmejian’s first run for the governorship.
Novey said later that his biggest blunder was the 1982 governor’s race, when the union backed Tom Bradley over then Attorney General Deukmejian. After Deukmejian’s victory, Novey sent the new governor a congratulatory card and 10 pounds of kielbasa sausage. It paid off. Novey soon became a trusted voice as Deukmejian launched his prison building boom that almost tripled the number of state lockups, all of which needed lots of guards.
Deukmejian jacked up recidivism. When Reagan was governor, the parole return rate was 20%. When Jerry Brown was in his first stint as Governor, the parole return rate was 25%. During Deukmejian’s two terms, the average parole return rate leaped to 73%. This was the stealth program to fill the massive cinder-block prisons so dearly loved by the CCPOA, and a jobs program for guards, courts, bureaucrats and, more recently, medical and mental health care professionals whose enormous taxpayer-subsidized salaries lure them to remote and impoverished parts of the state.
Subsequent Governors Wilson, Davis and Arnold Schwarzenegger essentially but inconsistently followed Deukmejian’s path.
During this lengthy span of history, trials have practically ended as a means of resolving disputes over guilt. More than 95% of criminal cases are resolved by plea bargaining, which is little more than coercion and extortion combined, adding up to a form of polite and sanctified torture.
The discretionary power of judges has been reduced by mandatory sentencing laws while the power of prosecutors has been dramatically increased by the same phenomenon. Prosecutorial power includes the initial decision to charge various offenses. The guilty and the not-so-guilty alike enter pleas of guilty rather than face the frightening prospect of an undeserved verdict and the mandatory sentence that would inevitably follow. The result is obvious: We rarely have trials except in those cases where the accused foolishly thinks his innocence will convince a jury or when the prosecutor refuses to compromise.
It is our harsh sentencing laws that have given prosecutors this power. In California, use of a gun mandates a 10-year addition to any sentence. Once a jury finds the accused used a gun in the commission of the crime, the judge has no discretion; she must add 10 years to the sentence.
Similarly, if a jury finds the crime was committed to facilitate gang activity, another 5–10 years is added to the sentence imposed and, in some cases, a life sentence is appended to the original sentence. A gang “allegation”—as it is described—is difficult to defend because the definition of a gang is so omnibus it would include police officers, physicians and politicians, if only they were charged. Likewise, a weapons allegation can be so vague as to include a boy carrying a baseball bat while riding his bicycle.
You don’t have to be guilty of much to end up in prison for life.
Felony defendants face charges that increase as the days go by. He says he wants to go to trial, and the next day he is presented with an even longer charging document. On the day of trial, the charges have increased. And, after a guilty verdict, sentence enhancements are tagged on. Judges are not supposed to penalize defendants for going to trial, but they do it. Jury trials are a rare and desperate option; there is only one acquittal in 212 guilty pleas or trial convictions in federal district court. State courts don’t keep such statistics.
Let’s face it, juries rarely find the government is short on proof. Before they get to the courtroom, jurors are convinced that gangs are hordes about to climb over their fence and steal their children, and their dog. They want the right to stash a gun next to the bed, but they don’t want anyone else to have one. Most Americans run on fear, and being a juror is an opportunity to act on that fear.
Some jurors lie to get on a jury just for the opportunity to punish someone, anyone will do. Only a quarter of summoned jurors actually serve on a jury, and anyone revealing even the slightest heart for an accused person or doubt about the fairness of the system is quickly dismissed from jury service by prosecutors. It’s no wonder the acquittal rate is so low.
Between 1990 and 2005, California’s prison population increased by 73%—nearly three times faster than the general adult population. At the end of 2010, California state prisons held about 163,000 adults, down from a peak of 172,000 in 2006. Even so, California penal institutions are operating at 175% of their design capacity, prompting the Supreme Court to recently order the transfer or release of more than 30,000 prisoners within two years.
After years of successfully battling California government over its unconstitutional treatment of prisoners, the Prison Law Office in the Bay Area parked its entire truck of California prison woes before the U.S. Supreme Court. The lawyers said it was about overcrowding to make it palatable to the public, but it was really about the insufficiency of basic medical and mental healthcare for inmates. In the end, the court ordered California legislators to do what had been a political impossibility: Empty the joints. The Legislature had to come up with a plan to reduce our prison population.
Unlike other court opinions, Brown v. Plata had photographs, one of which is featured here. An image of cages is described by the court thus: “Because of a shortage of treatment beds, suicidal inmates may be held for prolonged periods in telephone-booth-sized cages without toilets…A psychiatric expert reported observing an inmate who had been held in such a cage for nearly 24 hours, standing in a pool of his own urine, unresponsive and nearly catatonic. Prison officials explained they had ‘no place to put him.’”
The majority opinion is a ringing defense of the notion that under our Constitution society owes those we imprison a basic measure of rights:
As a consequence of their own actions, prisoners may be deprived of rights that are fundamental to liberty. Yet the law and the Constitution demand recognition of certain other rights. Prisoners retain the essence of human dignity inherent in all persons. Respect for that dignity animates the Eighth Amendment prohibition against cruel and unusual punishment…
To incarcerate, society takes from prisoners the means to provide for their own needs. Prisoners are dependent on the State for food, clothing, and necessary medical care. A prison’s failure to provide sustenance for inmates may actually produce physical torture or a lingering death…
Just as a prisoner may starve if not fed, he or she may suffer or die if not provided adequate medical care. A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society.
It’s a good thing Tea Party folks don’t read. If they did, they would stumble on Justices Antonin Scalia and Samuel Alito’s dissents, vitriolic attacks on judicial intervention in social institutions and a prediction of social chaos resulting from the release of so many prisoners. Both feared for the safety of Californians who would inevitably be preyed upon by released felons who are “fine physical specimens who have developed intimidating muscles pumping iron in the prison gym.”
The evidence had shown that prison gyms were filled with inmate beds.
Instead of releasing prisoners, California legislators developed what is called a “reintegration” plan in response to the high court’s decision. Some petty thieves and drug users will be incarcerated in county jails instead of state prisons. Probation departments are developing alternatives to incarceration: drug programs, education, training—the kinds of things that should have been put in place in the mid-1960s, when Governor Pat Brown had the chance.
Talk about a missed opportunity.
Catherine Campbell is a semi-retired civil rights attorney.