Convicting California

NEWS: How not to run a prison system, as demonstrated by Arnold Schwarzenegger and the Golden State.

By James Sterngold

July/August 2008 Issue

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As prison officials take the stand, Specter bores into them about the dismal state of death row at the maximum-security lockup, which is currently at 157 percent capacity. First, there is the question of cleaning supplies: Staffers explain in tedious detail the procedures for purchasing soap, brushes, and buckets, yet can't say whether inmates actually receive them. A plant manager insists that the bird droppings littering the cell block aren't a problem, even though the state has described them as "excessive." An hour is spent on laundry; an official admits he does not know why many death-row inmates wash their clothing and sheets in the toilets. This is followed by a lengthy discussion of whether the law library is adequately stocked.

This mind-numbing dissection of the prison's inner workings (which went on to include a discussion of the "stalactites of slime" growing in the showers) displays the uniquely dysfunctional way that California manages its desperately overcrowded, shockingly expensive prisons. Which is to say that it doesn't—Specter does. He's not a warden or a state employee, but a public interest lawyer who heads the Prison Law Office, an inmate-rights organization whose tiny size gives no hint of its outsized influence. Over the past 32 years, it has won a long string of class action lawsuits against the state. Judges have repeatedly found that California has violated the constitutional guarantee against cruel and unusual punishment and ordered sweeping improvements. In each case, the Prison Law Office has won the right to oversee the fixes, which can take ages; the case heard in January is about 29 years old. Specter and his 11 colleagues currently oversee court orders covering medical, dental, and mental health care for inmates; disabled prisoners; the parole system; and juvenile prisons, among others. The firm's $3 million budget is largely supplied by the state, which has to pay the plaintiffs' fees every time it loses a case, which is just about every time.

"We don't like to say it, but they practically run things," explains Jeanne Woodford, who went from being a guard at San Quentin to becoming its warden and then the head of the state corrections department under Gov. Arnold Schwarzenegger until she quit in frustration two years ago. "The bureaucracy, the way it is structured, cannot keep up with what they have to do at all. Under the normal process, it takes a year to change a rule, a simple rule. The court says, 'Do this,' and you just do it. Believe me, we'd get none of the resources we really need if it weren't for the litigation and the Prison Law Office."

Even James Tilton, secretary of the California Department of Corrections and Rehabilitation, admitted in an interview before his sudden resignation in April that Specter's work serves a purpose. "I'm trying to break that old system down," he said, "but there are some areas where the litigation can be helpful."

Specter doesn't embrace the burden of reforming the prison system one lawsuit at a time, but he sees little alternative. "I've tried persuasion," he says. "We tried coercion. We've tried the press. I haven't found anything else except litigation and the courts. As frustrating as litigation is, it's the only thing that I've seen that's effective—and it's not very effective."

california's archipelago of 33 prisons houses more than 170,000 inmates, nearly twice the number it was designed to safely hold. Almost all of its facilities are bursting at the seams: More than 16,000 prisoners sleep on what are known as "ugly beds"—extra bunks stuffed into cells, gyms, dayrooms, and hallways. Schwarzenegger has referred to the system as a "powder keg"; in October 2006, he declared a state of emergency, citing the effects of overcrowding—electrical blackouts, sewage spills, dozens of riots, and more than 1,600 attacks on prison guards in the previous year. Last year, a nonpartisan state oversight agency declared the prison system to be "in a tailspin that threatens public safety and raises the risk of fiscal disaster."

There is little disagreement that the status quo is unsustainable, yet the system just keeps on ballooning. Even as Schwarzenegger has promised reform, the corrections budget has exploded during his term, from $4.7 billion in fiscal 2004 to nearly $10 billion in fiscal 2007, or about $49,000 for each adult inmate. In contrast, the 220,000-student University of California system gets less than $4 billion annually. The prisons' operating costs do not include the $7.7 billion that Schwarzenegger and the Legislature have agreed to spend on adding thousands of new beds to ease overcrowding. Nor does it include the additional $7 billion the state will spend to improve health care for prisoners—as mandated by yet another federal case won by the Prison Law Office.

Meanwhile, services for prisoners have all but collapsed, from literacy classes (nearly one-fifth of California's inmates leave prison totally illiterate despite a law mandating that they read at a ninth-grade level before release) to medical care. In 2005, after a federal judge found that an inmate a week was dying due to incompetence or inadequate care, he placed the prison health care system under a court-appointed administrator. "This statistic, awful as it is, barely provides a window into the waste of human life occurring behind California's prison walls," wrote the exasperated judge.

Since peaking in 1992, the state's violent crime rate has dropped 53 percent. Even if the drop can be attributed to fewer criminals on the streets—which some experts dispute—it does not fully explain why the prison population has nearly doubled since 1990. The number of inmates entering prison with new felony convictions has not risen much in the past decade; last year, around 34 percent of the 139,000 incoming inmates had new convictions. But a startling 51 percent of the new admissions were parole violators, mostly serving brief sentences for breaking their terms of release. At any given moment, about 11 percent of all California prisoners are parolees back behind bars for technical violations. The state has the highest recidivism rate in the country, close to 70 percent—compared with about 50 percent nationwide.

California's ills are exceptional, but they provide a warning about the enormous costs of a system singularly focused on punishment over rehabilitation. For more than three decades, California has been trapped in a self-perpetuating cycle where putting more people in prison for longer periods of time has become the answer to every new crime to capture the public's attention—from drug dealing and gangbanging to tragic child abductions. Spurred on by a powerful prison guards' union and politicians afraid of looking soft on crime, corrections has become a bottomless pit, where countless lives and dollars disappear year after year. And now that it has metastasized to the point where even a tough-guy governor and the guards agree that the prisons must be downsized or else (see "Taming of the Screws"), every attempt at change seems stymied by inertia. The sheer size of the system has become the biggest obstacle to finding alternatives to warehousing criminals without preparing them for anything more than another cycle of incarceration. "The public believes the prison population reflects the crime rate," says James Austin, a corrections consultant who has served on several prison-reform panels in California. "That's just not true. It's because of California's policies and the way it runs the system."

arnold Schwarzenegger stormed into the governor's office in 2003 after winning a recall election against his Democratic predecessor, Gray Davis. The former action hero sought to turn his larger-than-life personality into equally grand results, especially in the state's ineffective prisons. As one of his first official acts, he chose a reform-minded administrator named Rod Hickman to head his corrections department and help figure out "how to put this broken system back together." He even amended the name of the California Department of Corrections, adding the word "rehabilitation."

Initially, Schwarzenegger signaled a potential sea change from the get-tough approach his predecessors had taken for three decades. Like many states, in the late 1970s California was swept up by a bipartisan insistence that government needed to punish, not coddle, criminals. He may have been known as "Governor Moonbeam," but it was Democratic Gov. Jerry Brown who kicked off the state's embrace of harsh sentencing in the mid-'70s. The penal code was changed in 1976 to state that "the purpose of imprisonment for crime is punishment." Dozens of tough laws were passed under the governors that followed, including stricter sentences, fewer opportunities for release for good behavior, and an early, sweeping three-strikes law. Predictably, the state prison system grew exponentially. In 1970 California had 12 prisons and 23,000 prisoners; 30 years later, it had 21 new prisons and six times more inmates.

There was no lack of blueprints to guide Schwarzenegger's vow to fix the prisons while still ensuring public safety. Few prison systems have been more thoroughly studied than California's. Various official panels have identified overcrowding as untenable and have recommended shrinking the number of prisoners with methods proven to rehabilitate inmates and reduce recidivism.

Early on, Schwarzenegger's corrections department endorsed these "evidence based" solutions. A large body of data has demonstrated that smart programs that rely on treatment, and include carrots and sticks, can provide some inmates the skills to manage their lives without resorting to crime. For the tens of thousands of inmates who cannot read, even a modest amount of education can put jobs within reach. For inmates suffering from mental illness—up to 30 percent of California's prisoners—a combination of therapy, medication, and counseling both inside and outside of prison can reduce recidivism. Between 50 and 75 percent of California's inmates have substance abuse problems, but only 11 percent receive alcohol or drug treatment, less than half the national average. Yet, according to a landmark study by the Washington State Institute for Public Policy, intensive drug-treatment programs for prisoners reduce their chances of reoffending by an average of 17 percent. For every dollar invested in substantive vocational, therapy, or substance abuse programs for inmates and parolees, states can save anywhere from $2 to $98 in the form of lower costs for everything from prisons to courts to police.

But there was no greater statement of the governor's fresh agenda than his attempt to fix the parole system so that it might actually keep parolees out of prison. No matter what his crime, every single inmate in California is put on parole for at least one year—and as many as three—after release, a more stringent requirement than nearly any other state's. This leaves parole agents overworked, and most inmates do not receive adequate support in looking for jobs, therapy, or drug rehab. Parole has become a series of trip wires that, when crossed, can put parolees back in prison for months at a time. Last year, 21,000 parolees returned to prison for committing new crimes. More than 70,000 were sent back for "administrative" infractions, such as failing to report to their parole agents on time, changing addresses without authorization, or drug use or possession. Given that a majority of parolees have serious substance abuse problems, are mentally ill, or both, these violations can be chronic. Many parolees who have committed no new crimes get churned in and out of prison in what some refer to as "life on the installment plan."

In early 2004, Schwarzenegger announced the New Parole Model, a combination of residential drug treatment, electronic home detention, and halfway houses that was designed to keep parole violators out of prison. Corrections Secretary Hickman said it would slash the prison population by 13,000 in a few years. He was so confident that he warned local politicians they would have to wrestle over which prisons to close. But the policy encountered staunch resistance from the prison guards' union as well as victims' rights groups, which produced a television ad campaign that suggested that hardened criminals were being set free. Confronted by institutional obstinacy and political fearmongering, Schwarzenegger caved. In April 2005, he quietly and abruptly abandoned the New Parole Model. Three years later, the prison population remains at a crisis level. The state has forecast that, without any changes to the parole system, it will grow by 13 percent, to 192,000, in the next five years.

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Photo: Victor J. Blue/Koppel on Discovery

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