Tag: Criminology

by Jonathan Simon

Health care, confinement, and the future of imprisonment

From Boom Summer 2016, Vol 6, No 2

California’s newest prison—the first one commissioned since the 1990s—is also the first in decades not to be called a prison.¹ The California Health Care Facility, Stockton (CHCF), opened in 2013 on the site of the former Karl Holton Youth Correctional Facility. Designed to hold 1,722 beds and now providing housing and treatment for 2,951 “inmate-patients,” it houses the most medically and mentally challenged prisoners in the state. At 1.4 million square feet, the facility is one of the largest ever built. CHCF contains fifty-four buildings built on a single-story plan to house prisoners largely immobilized by severe long-term illnesses.

Correctional hospitals have been built before, but never has a facility of this scale been built for the highest level of medical-risk patients (as reports of the State’s correctional healthcare Receiver terms them). The prison is essentially a massive intensive care unit with electrified fencing and formidable walls. No state has ever opened or operated a prison on this scale with the mission of handling such ill prisoners. Why would a state with such overcrowding problems and that has not built a new prison in more than a decade elect to spend so much money to house such delicate prisoners? In large part, the answer lies in the orders of the federal courts. Since 1995 and 2002, respectively, different federal courts in California have held the entire system to be violating the constitutional rights of prisoners by holding them in facilities that cannot assure adequate treatment for the serious medical and mental health problems that many of them bring with them to prison and others develop there. In 2005, the entire prison healthcare system was put under a court-appointed Receiver. One of the ways California has sought to comply with these court orders (so far unsuccessfully) is by building new medical and mental health facilities to which it can move the many prisoners with already identified serious problems. CHCF is the first of two giant prison hospital complexes to be opened in Stockton.

The related reason is medical. These prisoners, the most vulnerable in the system, are the tip of an iceberg of chronic illness in California prisons. In California, a rapidly aging prison population is especially vulnerable to chronic illness, where approximately 40 percent of prisoners have one or more, a fraction consistent with nationwide estimates. For younger people, especially men of color or involved in gang-based crime, prison may have a positive influence on health by dramatically lowering their risk of being shot and by giving them exposure, sometimes for the first time in years, to some kind of healthcare system. As people age in prison, however, chronic illnesses such as diabetes, hepatitis, and cancer become more common, some a product of the lifestyles that often accompany criminalization such as drug addiction and high-risk sex. Even in prisons where healthcare meets the basic minimums considered constitutionally adequate, chronic illness is likely to worsen considerably through the routine nature of boredom and (paradoxically) stress, combined with a poor diet, and greatly aggravated by overcrowding. In California, where healthcare has been under court order as constitutionally substandard for nearly two decades, it is not surprising that the state has accumulated a large number of very sick people for which it has now created a kind of “supermax” for the at-risk prisoner.

The Stockton facility initially opened in July 2013, and almost immediately the State began moving in prisoners to relieve their continuing problems of overcrowding. Problems emerged almost immediately including at least one death where the bleeding prisoner died after staff took 30 to 60 minutes to respond to his emergency call from inside his cell. Lawyers for the prisoners found prisoners “confined to broken wheelchairs” and sitting in their own feces and urine. At another point, shortages of towels and soap temporarily halted showers for some prisoners. Officials blamed the inevitable gaffes on opening such a giant and complex facility, but CHCF has had more basic problems in more familiar tasks for prisons, like managing the supply chain and motivating staff to address an extremely needy prison population. In January, the court halted intake at the prison; in his February 2014 report, noting that the “need to address issues impacting health care was, as a practical matter, being treated as a second class priority,” the Receiver expressed dismay at the basic attitude of prison officials.²

Even with its flawed launch, the opening of Stockton’s CHCF may mark the dawn of a new era in California prisons. Although considered by the State of California a specialized tool that will help it comply with court orders to provide a higher standard of care in both medical and mental health treatment, it also serves as a window into the changing vision of prisoners and of the correctional enterprise in a state that helped lead the move to mass incarceration a generation ago.

In this regard, it is interesting to compare this new vision for California prisons with a similarly paradigm-shifting prison—Pelican Bay State Prison and its notorious SHU (for security housing unit)³ opened in 1989 as California approached the peak of its commitment to mass imprisonment. The two are as different as possible in their stated purposes and intended populations. Both share a common origin in the efforts of California’s giant carceral State to shake itself free from the grip of persistent federal courts seeking to enforce constitutional rights for prisoners with a new kind of specialized prison that would service the larger prison system and make it more sustainable. In their differences, we can read some important developments in what we might call California’s carceral geography.

Pelican Bay State Prison SHU

In the 1980s, as California began to develop a new archipelago of prisons to support its commitment to expanding incarceration, one particular new prison built on the remote northern coastline near Oregon emerged as a kind of model institution for the new way it had come to think about crime, prisoners, and punishment. Pelican Bay State Prison was named not for its location on an unnamed part of the coast, but as a nod to the infamous former federal prison in San Francisco Bay, Alcatraz, which housed the most dangerous prisoners in the federal system from the 1920s until the 1960s—prisoners including Al Capone. (Alcatraz means pelican in Spanish.)⁴ In particular, a large part of the Pelican Bay prison was built as a “supermax unit,” designed to hold prisoners in near total lockdown, with no programs, no contact with other prisoners, and no more than one hour a day out of their cell to shower or exercise in an open-air version of their cell.

If California’s commitment to growing the prison system in the 1980s was rooted in the broad shifts in California governance from a high-investment New Deal liberal state to a low-taxes conservative state, and the politicized fear of crime in the Golden State, the Pelican Bay SHU was built on a very specific nightmare. In August 1971, during a sustained period of politically motivated conflict in California prisons that lasted several years, an uprising at San Quentin led by Black Panther leader and already-famed author George Jackson resulted in the murder of several correctional officers (as well as the death of Jackson who was shot in a hail of bullets as he attempted to escape). The uprising took place in the Adjustment Center, a unit at San Quentin then considered the most rigorous in the State and to be used on the most potentially violent and dangerous prisoners.

In all, a total of eight officers died that year. This upsurge in violence against guards (killings of correctional officers are extremely rare historically and became so once again a few years later) took place against a moment of racial conflict and revolutionary narratives inside prisons. California prisons were shifting to minority white, and the long legacy of Jim Crow racial norms, enforced by the guards, became a central focus for conflict inside the prison society. In the broader society, the struggle for equal citizenship for minorities, especially Blacks and Latinos in California, was taking on a more militant expression, especially after the assassination of Dr. Martin Luther King, Jr. For some on the radical left of the late 1960s, prisons appeared as the frontline of political struggle against a state that seemed to them overtly racist and fascistic, and prisoners like Jackson were the leading revolutionaries.⁵ For conservatives, these events highlighted the severity of the danger posed by California prisoners and their peers in the community not yet imprisoned.

As California prison managers began to plan the many new prisons authorized by the legislature in the 1980s, the need for an extreme mechanism of control to prevent any future Adjustment Center like uprisings was given priority. The State had found itself in continuous litigation with prisoners, especially those who had survived the uprising and were being held under the most exacting controls (including shackling). If California was going to greatly increase the numbers of people in prison from the levels of the 1970s, it stood to reason that the number of extremely violent and dangerous prisoners would grow commensurately. California officials ordered two massive supermax units—a brand-new SHU at Pelican Bay and a similarly sized SHU to be retrofit into an existing prison at Corcoran.

The levels of violence experienced in the 1970s never returned, despite rapid growth in the prison population and increasing overcrowding. The SHU at Pelican Bay became a segregation tool for prisoners believed to be active members of one of the racially defined prison gangs that had come to dominate prisoner society and public order maintenance inside prisons since the removal of parole incentives and programs back in the early 1980s. Instead of being sent to the SHU for particular acts of violence, gang members were sent there after a process of being “validated” as gang members by prison officials, and they remained there until they broke with the gang (provable only by informing on other gang members), reached the end of their sentence, or died.

The extreme conditions of confinement in the SHU and the frequent use of violent “cell extractions” to overcome prisoner resistance (manifest in acts like refusing to return a tray, since prisoners eat alone in their cells) soon came before the federal courts. In the landmark 1995 case Madrid v. Gomez,⁶ Judge Thelton Henderson found that the cell extractions, and other routines of physical violence to establish order, violated the Eighth Amendment, and that holding prisoners already suffering from a mental illness under the psychologically destructive regime of the SHU also violated the Eighth Amendment. However, Judge Henderson, required by precedent to defer to the expertise of prison officials in matters of security, largely accepted the representations that those prisoners assigned to the SHU were “the worst of the worst” who posed an extreme threat to staff and other prisoners. While voicing grave concerns about it, Judge Henderson found the SHU constitutional if steps were taken to curb violence and identify people with emerging mental illness.

The Pelican Bay SHU has long been defended by California prison officials as an essential management tool to assure that other prisons in the state system could operate safely. The extreme isolation imposed on some prisoners was essential, officials maintained, to permit others to live in a more open regime with access to other prisoners, staff, and programming. In reality, the Pelican Bay SHU became a kind of model, in an extreme way, for what was becoming California’s overall approach toward imprisonment in the era of mass incarceration.

Prisoners in the SHU were subject to a permanent “lockdown,” confined to their cells 23 hours a day without access to education, work, or rehabilitative programs. But as the California prison system became catastrophically overcrowded in the late 1990s, many other prisons found themselves regularly on “lockdown.” Resources for rehabilitation remained grossly inadequate despite the change in the name of the Department of Corrections to the Department of Corrections and Rehabilitation under Governor Schwarzenegger.

Instead of providing an exception, the Pelican Bay SHU revealed the logic underlying California’s penal strategies. This strategy, which I have called “total incapacitation,” views crime as the inevitable outcome of having criminals in the community.⁷ Prison produces public safety by isolating criminals in places where their only immediate victims can be other prisoners or, sometimes, correctional officers. To control this level of internal threat, specialized prisons must allow a range of security regimes culminating in a supermax or SHU. Only in 2015 did the settlement of a new lawsuit challenging the practice of holding some prisoners in the SHU for more than a decade and signs of increase judicial intolerance of these extreme practices lead the State to agree to changes in the selection practices and duration of SHU incarceration. ⁸

This pessimistic penal philosophy, which views all prisoners as dangerous and takes little or no responsibility for enabling them to reduce their risks, has dominated California corrections during more than three decades of mass incarceration. Today California prisons seem in the midst of change. Yet, it is far from clear that total incapacitation has been significantly weakened let alone replaced with a new carceral vision. Could Stockton’s California Health Care Facility be that new vision?

CHCF and Pelican Bay’s SHU do stand in striking contrast. The SHU was built to house the allegedly most dangerous prisoners in the state. The CHCF was built to house the most medically and mentally compromised prisoners in the state. The SHU was built to isolate prisoners and their bodies from contact with prison staff and other prisoners. The CHCF was built to facilitate staff access to the bodies of prisoners. The SHU workforce is oriented to containing prisoners they themselves view as capable of committing extreme violence, and they are trained accordingly. The Stockton facility’s staff includes some 2,500 professional healthcare providers.

But a more careful examination shows remarkable similarities. Indeed, sometimes the more things change, the more they stay the same. So far, the SHU and CHCF represent not two paradigms of punishment but two sides of the same coin—in this case, the long-term custody and care of a great many people sentenced to long prison sentences. Steps that have already been taken to reject imprisonment for minor drug and property crimes, or to reduce some property crime sentences, will probably not be enough. Until California is ready to revisit its continued reliance on penal segregation and incapacitation to address crimes of violence or repeated crimes deemed serious (like burglaries), it is likely to be operating SHUs and CHCF like hospital facilities.

Three common aspects of these two model prisons, completed nearly a quarter century apart, suggest that not nearly enough has changed about California’s approach to imprisonment. They were built to protect the State from litigation. Their planning and design accepted a supersized prison population as the norm. Finally, and most seriously, their design and operation suggest a management culture inside California corrections that cannot fully come to terms with the fact that prisoners retain their right to essential human dignity.

Adversarial Legal Design

Before the 1970s, prisons were largely left to philosophies of their chief executives and the general lack of adequate funding provided by state legislatures almost everywhere. As courts dropped their historic “hands-off” policy toward prison litigation in the 1960s and 1970s, prison managers adapted to the threat of lawsuits from inmates by developing legal departments and taking court precedents into account in their design and operation of prisons. Prisoners’ advocates hoped such litigation might lead states to reduce reliance on incarceration, instead this coincided with a boom in prison construction driven by the politics of law and order. Paradoxically, while some prison managers welcomed the original litigation in the hope that it would improve prison conditions over time, correctional administrators have evolved in the direction of “adversarial legalism,” viewing courts and lawsuits as part of the permanent strategy for running prisons while complying in the most minimal way possible.⁹ The rise of mass incarceration took place after an enormous increase in the legal regulation of the correctional enterprise. As a result, constitutional standards intended to provide a minimum level of decency have become instead a “maximum” conceded to prisoners only in order to avoid more costly court orders.

In the case of Pelican Bay, the SHU was built in large part to get the prison system out from under a number of court orders imposed during the 1980s to protect prisoners held in California’s “adjustment centers,” then California’s most secure facilities for those prisoners considered the most dangerous.¹⁰

The California Health Care Facility is also a product of litigation, with nearly twenty years of court orders to improve care for prisoners with mental or physical illnesses. The first case, Coleman v. Wilson (1995)¹¹ held that California prisons lacked all of the essential elements of a constitutionally adequate system of mental healthcare. The second case, Plata v. Davis (2003),¹² settled with California agreeing that state prisons lacked constitutionally adequate medical care and to fix the problem within three years. Instead, three years later Judge Henderson declared California’s remedial efforts a failure and appointed a Receiver to run the healthcare system in prisons. Despite this, chronic overcrowding stymied any real improvements in the health area. This set up a showdown over California’s mass incarceration policies in front of a special three-judge federal court.¹³ The special court ruled in favor of the prisoners in 2009 and ordered California to reduce the population in its prisons by some 40,000 prisoners; not eliminating overcrowding but reducing it to 137.5 percent of design capacity, a figure chosen to reflect the minimum intervention necessary to allow the earlier court orders to be fulfilled. California appealed, and two years later in Brown v. Plata (2011),¹⁴ Justice Anthony Kennedy criticized California in unusually harsh judicial tones. The denial of basic medical and mental health care to its prisoners was “incompatible with the concept of human dignity and has no place in civilized society.”

Stockton’s CHCF, with its fifty-four specially equipped medical buildings, is the State’s most significant effort to date to provide constitutionally adequate care for its prisoners with mental and physical illnesses. In California, where nearly 30 percent of all prisoners are classified by the federal court in the Coleman case as suffering from a major mental illness, and as many as 40 percent are estimated to have physical illnesses, more such units are already planned.¹⁵ The difficulties of CHCF’s launch suggest that managing sophisticated medical units like these from within California’s current correctional culture will be extremely difficult.

Supersize

California was neither the only, nor even the first, state to integrate a supermax-style prison into its prison system. Although shunned in most other countries, the supermax-style has become ubiquitous in the United States. What stands out about California’s approach is the sheer scale of its facilities. Pelican Bay’s SHU was designed to house over 1,500 prisoners, and the State equipped itself with capacity to hold another 1,000 in secure housing units created at other prisons. This scale reflected not simply the state’s population, but its commitment to keep a very large number of prisoners in SHUs on a long-term basis.

The California Health Care Facility reflects the same gargantuan outlook. Designed to hold nearly 3,000 prisoners, the scale reflects both the high proportion of California prisoners suffering from serious chronic illnesses and sentencing laws that make it unlikely that many of these prisoners will ever get to leave prison.

The scale of these technical and specialized prisons is daunting for two reasons. First, it presumes the lack of meaningful methods to establish secure and nondegrading prisons without reliance on isolation and the continued custody of thousands of aging and ill prisoners who pose little or no risk of crime in the community. Second, California’s systemic problems managing mental and physical health is exacerbated by placing such huge administrative demands on prison managers and staff who are also expected to carry out an exhaustive and individualized care regime.

No Dignity

In his majority opinion in Brown v. Plata, Justice Kennedy wrote that prisoners, even while losing their liberty, “retain the essence of human dignity inherent in all persons.” The Court ordered California to follow through with the population reduction order and to fulfill the court orders to provide decent medical and mental health care. Yet despite the fact that California met its target of 137.5 percent of design capacity in January of 2016, the prisons remain a long way from respecting dignity. The problem is deeper than overcrowding. California’s prisons were not designed with human dignity in mind.

The SHU was built with the intention of dehumanizing its residents who were isolated in conditions that expressed the desire to be punitive and subjected to extreme sensory deprivation that went beyond any security rationale. With its emphasis on at-risk prisoners and professional healthcare, one might expect the CHCF to be a place to find signs of dignity emerging as a correctional value in California. Yet the problems that led to a halt in prisoner intake in 2014 strongly suggest the contrary. Opening a prison, let alone a hospital prison, without sufficient soap or towels is missing the dignity basics. Allowing disabled patient prisoners to sit in their own urine or feces because of insufficient equipment—or allowing someone to bleed to death because of insufficient staff to respond to his alarm—belongs in the category of torture and degrading treatment. Such neglect reflects a basic institutional inability to treat people who are prisoners with respect for their humanity.

The need for change goes well beyond the culture of frontline staff and the local managers. The very design of CHCF, with its electrified fencing and expensive security infrastructure to contain prisoners mostly too ill to move about easily, suggests an inability to imagine prisoners and prisons beyond the logic of total incapacitation. Healthcare lawsuits and the largest and most comprehensive institutional reform efforts ever carried out in American prisons have not been able to change that logic, and they may have even deepened its adversarial defensiveness. Courts can help the process of change, but they almost certainly cannot bring it about unilaterally. The legal challenge to the Pelican Bay SHU was a missed opportunity to politically challenge the commitment to total incapacitation in the 1990s. The continuing legal crisis over healthcare in California prisons and the difficulties the State faces in opening complex health-facility prisons like CHCF present a compelling opportunity for Californians at the ballot box—and through social movements—to demand a new correctional and public safety vision, one that replaces outmoded 1970s thinking about crime and places human dignity at the center of prison design and operation.

Notes

 1. Back in the rehabilitative era (1940–1976), newly opened prisons were given names reflecting their aspiration to “treat” inmates with distinct criminal profiles, such as the California Institute for Men (Chino), designed to hold younger prisoners deemed more reformable, or the California Medical Facility (Vacaville), designed to hold mentally ill prisoners. Since the 1980s, California has built twenty-three new prisons; all were simply named after their locations, such as California State Prison, Corcoran, or Calipatria State Prison. See the California Department of Corrections and Rehabilitation website for a list of state prisons (http://www.cdcr.ca.gov/index.html).

 2. California Correctional Health Services, “Achieving a Constitutional Level of Medical Care in California’s Prisons, Twenty-Fifth Triannual Report of the Federal Receiver’s Turn Around Plan of Action (1 February 2014).

 3. Like most California prisons built in the 1980s, Pelican Bay is more of a penal colony with several distinct units. The SHU is the largest, designed to hold nearly 1,800 prisoners. There are several other units, all classified for prisoners the system rates as high risk (level III or IV) but also one small unit for prisoners considered lower risk (level II).

 4. The name was changed by legislation from “Prison of the Redwoods.” There is no direct evidence in the legislative history that the authors of the bill deliberately echoed the name of Alcatraz, but the notes do show that it was selected after a discussion of extreme sounding names such as “Slammer by the Sea” and “Casa No Pasa.” See Keramet Reiter, “The Most Restrictive Alternative: The Origins, Functions, Control, and Ethical Implications of the Supermax Prison, 1976–2010,” unpublished dissertation (UC Berkeley, 2012), 99.

 5. See Eric Cummins, The Rise and Fall of California’s Radical Prison Movement (Palo Alto, CA: Stanford University Press, 1994).

6. Madrid v. Gomez (1995) 889 F. Supp. 1146 – Dist. Court, ND California, 1995.

7. See this developed further in Jonathan Simon, Mass Incarceration on Trial: A Remarkable Court Decision and the Future of Prisons in America (New York: The New Press, 2014).

8. The case, Ashker v. Brown, involved a class of some 200 prisoners who had been held for at least ten years. In the summer of 2015, a concurring opinion by Justice Anthony Kennedy in a California death case unrelated to the SHU expressed grave reservation about prolonged solitary confinement. The settlement still allows the State to hold people in the SHU for as long as five years, and even longer if programs are provided to them. See Center for Constitutional Rights, http://ccrjustice.org/home/what-we-do/our-cases/ashker-v-brown.

9. Robert Kagan, Adversarial Legalism: The American Way of Law (Cambridge, MA: Harvard University Press, 2001).

10. The Madrid decision ordered changes in the management of the prison, which had relied heavily on violent physical repression in the form of “cell extractions” and “restraint chairs.” Judge Henderson also found that the effect on prisoners already suffering from mental illness was so profound as to violate the Eighth Amendment ban on cruel and unusual punishment. Typical of the adversarial legalist logic and the limited jurisdiction of courts, the State complied at Pelican Bay but continued to house prisoners with mental illnesses in its other SHU-type facilities until finally ordered to end the practice system-wide in 2013 under the jurisdiction of another court, which had system-wide jurisdiction over prisoners with mental illness in California.

11. Coleman v. Wilson (1995) 912 F. Supp. 1282 – Dist. Court, ED California, 1995.

12. Plata v. Davis (2003) 329 F. 3d 1101 – Court of Appeals, 9th Circuit, 2003.

13. The Prison Litigation Reform Act of 1995 requires that a special court composed of three federal judges, including one from the court of appeals, be convened before any population reduction or cap can be ordered.

14. Brown v. Plata (2011) 563 US 493 (2011).

15. See Lois M. Davis, et al. “Understanding the Public Health Implications of Prisoner Reentry: A State of the State Report,” (RAND 2011) http://www.rand.org/content/dam/rand/pubs/monographs/2011/RAND_MG1165.pdf.

by Paige St. John

Revisiting California’s death row

From Boom Summer 2016, Vol 6, No 2

Slotted between steel and concrete, California’s condemned grow old.

Child stalkers, serial killers, men who maimed, dismembered, and raped are in walkers and wheelchairs. Graying now are the hold-up men who shot pizza-joint clerks or jewelry-store managers, and the crack-addicted panhandler who gunned down the woman who had rebuffed him outside a hotdog stand.

In California, they do not die by lethal injection but by hepatitis and cancer or the infirmities of time. They overdose on meth or strangle themselves on knotted bedsheets and electric cords. Others wait in diapers, with oblivious minds, shipped to hospital wards and hospice units.

For the rest, there is limbo.

For the majority of condemned men in California, death row is a cavernous granite warehouse at San Quentin State Prison called East Block. The cells are stacked five high, akin to containers in the hold of a cargo ship. Here, some 500 convicted murderers wait for executions that never come.

East Block also is shuttered to the forces of redemption. The condemned seldom leave, and outsiders even more rarely are allowed in. There is no pretext of rehabilitation—no prison jobs, no drug treatment, no courses on anger management. The condemned speak with envy about what they do not know: that “other” San Quentin with its army of prison volunteers, the Shakespearean acting troupe, the inmate newspaper, the technology lab, and business incubator.

They live in extraordinary confinement, allowed out of their cells only every few days, one at a time to shower, or in gang-aligned groups to exercise. The tennis-court-sized yard is so crowded that many inmates remain in their 4′ x 8′ cells. Vitamin D deficiency from lack of sun is common.

Every half hour, a guard walks by, to check for suicides.

State corrections administrators refused to allow journalists access to the state’s death row for years. Then in December 2015, Corrections Secretary Jeffrey Beard changed his mind. Death row had become topical. For half a day, he opened death row to the media—then closed it again.

The impetus for the brief opening was California’s public comment period on its latest execution protocol—the step-by-step procedures prison officials would have to follow if the state were to resume executions. This is California’s third protocol in a decade, and it is as unlikely as its predecessors to be used anytime soon. Death penalty opponents and death penalty advocates meanwhile are preparing dueling ballot initiatives to repeal or expedite the killing of prisoners.

There will be convincing arguments about the innocents almost assuredly cast among the condemned.

There will be outrage over the unrequited pain of those whose mothers and sons were slain.

And the heat will be about a capital punishment system that exists only in name.

None of this is new in California. It is an old dance around an older question that never confronts the reality, the high price of doing nothing.

Kenneth Friedman didn’t pretend to be innocent.

He admitted to kidnapping and murdering two men in Torrance in the early 1990s—one of them apparently a bystander—on the order of one of Miami’s petty crime bosses. He sat on their chests and strangled them slowly, one at a time with a phone cord. Already serving a life sentence in federal prison for the interstate aspects of the killings when he pleaded guilty in California, Friedman expected a return trip to the more comfortable confines of the federal penitentiary in Leavenworth, Kansas.

What the hit man from Queens, New York, hadn’t bargained for was San Quentin.

When he arrived in 2005, conditions on death row were deplorable. Pigeons free-ranged in the granite cell block and their dung encrusted the steel railings and catwalks of the five-story tiers of cells. The rest was rust. Sewage dripped from the open showers and inmates flushed their houses clean by flooding the cell floor with toilet water, then releasing a dam of towels with a shouted warning—or sometimes not—to those in the cells below.

The insane on the row ranted and screamed so much above the general din of steel upon rock that a federal master ordered the installation of noise monitors.

Friedman had been an athletic figure who practiced martial arts. On East Block he was crippled by a degenerative joint disease. His legs swelled. He tore a rotor cuff that went unrepaired and contracted hepatitis. He became reliant on a walker and painkillers. When medical staff believed he was dealing his fentanyl patches to other prisoners, they cut him off the powerful opioid so abruptly while simultaneously tapering his morphine prescription that they were chastised by a federal court monitor for failing to provide a substitute painkiller.

Then, prison doctors wanted to amputate Friedman’s foot.

He saw his future in the other crippled men in the cells surrounding him on the bottom tier, where San Quentin put the elderly, the lunatic, and the crazed. Eight years after conviction, with the deadline to file his state appeal extended thirteen times, Friedman’s California taxpayer-funded lawyer had just turned in the opening brief of his bid to return to federal prison.

He told his cousin in New Jersey that death would be better. “He said ‘Fuck these people. I’m going to do it my way,'” said Charlie Heller.

Just before dawn on 26 August 2012, a patrol guard found Friedman strangled by a bedsheet stripped into rope and strung to a steel shelf, knotted around his neck, hands, and feet. The rigging was so complex it stuck years later in the mind of the Marin County Sheriff’s coroner who handled the report. At the time, what the deputy noted in his report was that after cutting Friedman free, or perhaps even before, the guards had shackled the corpse.

It’s a hallmark of California death row. In nearly every suicide report—and there are many; until 2013 the state led the nation in condemned suicides—coroners arrive to find the dead men in cuffs.

In a wilder California, from 1800 to 1941, 510 condemned were hung or shot for offenses as minor as theft and sodomy. The state began to gas condemned prisoners in 1938, executing another 194.

But modern California’s appetite for execution is no match to its even greater passion for the death sentence. Since 1978 when California voters restored the death penalty after courts had decreed it unconstitutional, prosecutors have convinced juries to condemn more than 900 murderers to death. The sentences are trumpeted in headlines. Jurors are congratulated on their civic duty and their courage, and discharged back to their ordinary lives. Only the prosecutors go on, adding up capital convictions like coups to roll out at election to remind voters of their championship of justice.

And at that point, the vengeance of California looks away.

In thirty years, only thirteen of the condemned have been executed by the state, and none for a decade while lawyers argue whether the state’s execution methods are painless and merciful. There are few who are eligible, anyhow.

The California Supreme Court upholds nearly every death penalty conviction it hears but federal judges reverse a large percentage of cases that make it that far—not because they find the appellants innocent, but because they find their trials flawed. The cases are sent back for retrial, and, if prosecutors want to attempt it, the process begins again. There is no statute of limitations on second chances to get it right. Douglas Stankewitz, condemned thirty-seven years ago, longer than anyone else on death row, is now awaiting a new trial in Fresno.

Some men have been reconvicted three times. Others win on appeal and are converted to life prisoners. By that change in status they are suddenly afforded much of what California had denied—prison employment, open cell blocks, extensive yard time, the ability to walk without chains. Life.

For an appeal to get that far in California requires now on average almost three decades. So few condemned cases have run the gauntlet that a federal judge in 2014 deemed the state’s capital punishment system was unconstitutionally random, but his ruling was overruled in 2015 by a federal appeals panel.

Only 16 of the current condemned class of 747 are eligible for execution, if the state did such a thing. The eldest of them is seventy-eight. He has been waiting thirty years.

Killing time then becomes the objective.

California has scant provisions to occupy the condemned, fewer still that might pass as a form of human enrichment. Each man may buy himself a television, but it must remain silent, listened to through earphones. Inmates may also own a guitar or a flute or a harmonica, and playing hours are restricted. The rest is books, correspondence classes, and paper crafts. A major object of negotiation last year for the death-row-inmate advisory council was to seek restoration on the exercise yard of a deck of Uno cards.

Enrichment then, for Clifton Perry, is the poetry circle he happened into through death row’s psychiatric program—a program once infamous for running therapy sessions that consisted of nothing more than movies. To read and critique each other’s work, a small number of men gather in a semicircle of booth-sized cages, death row’s version of group interaction.

Through this outlet, Perry has found a pursuit that carries him forward. His poetry is contained in a collection housed at the State Capitol, bound in a collection of California’s best works. He is competing for international recognition.

Once a member of LA’s 59 East Side Crips who came of age in juvenile detention halls, he’s the son of a heroin addict. He enrolled in college but between classes, he robbed stores. Once, his case files show, he resuscitated a child. In 1995, at twenty-five, Perry shot the owner of a Stop and Shop.

Twenty-one years later, lawyers in state and federal courts still argue over whether the gun was fired in panic, while Perry tries to not obsess about just having lost a shot at one of East Block’s rare custodial assignments. After a hiatus of several years, San Quentin recently decided to return work privileges to death row. Fourteen of the more than 500 men on East Block are assigned as “porters” to scrub the showers or clear lunch sacks or stray balls from the exercise yards. But Perry, having been deemed so lucky, lost his spot even before his first day after he sent himself to the mental health program for a cooling-off spell.

He speaks in the careful fashion of a long-timer, breaking off anything he has to say at the slightest interruption. “Go ahead.” It frustrates him that a state that holds the fate of men in limbo for so long puts no effort in their reform—as if the lives and souls of those to die do not still matter.

In a legal sense, they don’t. Federal rulings hold that the US Constitution requires only that prisons be “safe.” There is no right to rehabilitation.

Thus, the “constitutional minimum” of existence for California’s condemned has been governed by federal judges from almost the start.

The year after the death penalty was reinstated, a briefly condemned man named Maurice S. Thompson (he was resentenced the following year) filed what became a twenty-year class action lawsuit to force the state to provide a prison life approximating that of other inmates. In a series of consent decrees beginning in 1980, the state was required to provide exercise, access to the law library, typewriters, sanitary conditions, hot meals, tolerable noise levels, and religious services. In 2006, it was ordered to quiet the screaming psychotics and remove the dung of pigeons.

The death row chapel speaks to the minimalist reading of those decrees. It is a converted shower bay, fenced to resemble a holding cell. The clergy stands in his own cage, in bulletproof vest, beneath the water pipes.

“I believe the saddest thing for me is when I was seeing the languishing Men here, Men like Horace Kelly & Mack Man,” Perry wrote in a letter last July.

“Mack Man would walk around so filthy that it grieves me as a proud Black Man to see another Brotha that deteriorated! His hair was so crunchy that he had lice that made a home in his hair. They said when they cut his hair, about 40 bugs just started scattering because of the light.”

The men he referred to were the delusional and psychotic inmates who lived on death row before the 2013 federal order for California to provide the condemned with full psychiatric care.

Since the 1980s, they had been left on East Block, ranting and delusional in their cells, rolling feces into imaginary confections. Horace “Smelly” Kelly, who raped the women he killed, had lived unwashed amid garbage to his knees. Mack Man was Jeffrey Jones, the real-life version of a Hollywood psycho killer who prowled bathrooms, using a hammer to bash the heads of his victims. Prison records show Jones often fell catatonic, lying naked for days at a time on the floor in his feces. At other times, he rambled in endless nonsensical wordstreams, promising to “kill again with a black-handled buck knife” as soon as he was paroled, “a 217-pound muscle with sperm.” As recently as 2011, a note in his psychiatric files shows, Jones, still shitting on himself, had maggots living in his beard.

In 2014, a federal judge added full psychiatric care to the “constitutional minimum” of the condemned. In 2015, California opened the nation’s first psychiatric death row unit. In less than a year, the forty-cell floor had only a single empty bed.

With a death penalty that exists in name only, California whittles away at its condemned with time.

Simply wait long enough, and terrifying men like Teofila Medina become nothing. The gigantic killer’s capacity for violent rage was infamous. His frightened sister turned him in to police in 1984 after he killed four people in four robberies in Orange and Riverside counties. In prison, he had terrified two doctors, smashing the glass partition separating him from a psychiatrist and proposing sex with another, right before his attorney. His lawyer, a man with some humor, relished in calling his towering client “Junior.”

In 1987, at conviction, two doctors testified Medina was schizophrenic and hallucinating but three doctors said they doubted it. Four years later, a prominent expert on serial killers, neurologist Dr. Jonathan Pincus, examined Medina on death row. He described a man unable to carry on a conversation, rutted in “reiterative, pressured speech regarding hemorrhoids.”

Prison medical files show he had chronic bladder problems written off as “benign prostatic hypertrophy”—an enlarged prostate. When his belly swelled with urine in late 2014 to the size of advanced pregnancy, Medina was driven to a local hospital where a urologist quickly surmised cancer. No one informed Medina’s lawyer back in Los Angeles who was still working on an appeal that argued Medina’s mental illness merited him the mercy of a life sentence.

Months after the diagnosis, a state lawyer who came to visit found a confused man refusing treatment for normally treatable prostate cancer. He said doctors who sought to do a bone scan were trying to kill him with radiation. He became so frail another lawyer who came to check on him asked the guard if he had brought the right man to the legal visiting room.

A San Quentin physician tried one more time to convince Medina to accept treatment and then when he still refused, referred him to California’s praised hospice program at another prison, where dying inmates are visited by family without the tight custody of incarceration. The staff there said he never made it.

The warden wouldn’t allow his admission. Junior Medina died in March 2015 under high security down the hall. Coincidentally, the very next day the Ninth Circuit Court of Appeals rejected the dead man’s appeal—thirty-one years after conviction. By then Medina was headed to the crematorium.

A month later, San Quentin released Medina’s medical records. The files revealed that just before his cancer was discovered, Medina had been diagnosed with “cognitive deficits.” A prison psychiatrist declared the mental impairment cured with vitamin B12 just in time for the prison system to allow the condemned man to reject medical care because he feared a bone scan more than death by cancer.

In the end, Californians got no execution, if they had ever wanted one.

They were spared the wrenching debate and moral challenge of having to actually kill someone. They avoided, too, the no-less-difficult moral prospect of extending mercy to a guilty and cruel killer. Nor were they asked to consider what California had actually done—still does—with its pretend death penalty and its sentences of limbo.

Medina’s lawyer of three decades was left with a storage locker stacked with boxes of files and evidence, old family photos by the beach, and case notes as well as the killer’s requests for magazines and sappy greeting cards addressed to the female legal aides who were his only visitors—the summation of a life on death row.

There was no place to take the next appeal.

There was no one to claim the belongings.

There was no one to pay to preserve any of it.

The lawyer turned in the key and left it to the storage company to dispose of the remains.

Note

Artwork photographed by Melissa Ysais and reprinted courtesy of the artist, William A. Noguera, who is a death row inmate at San Quentin State Prison.

by Eve Bachrach and Jason S. Sexton

What comes next?

From Boom Summer 2016, Vol 6, No 2

Very slowly, the era of mass incarceration is ending in California. We are sentencing fewer people to prison, prison sentences are getting shorter, and those who are released from prison are increasingly less likely to return for violating conditions of their paroles. Whether you think these changes are for the better or not, they are happening, and they provide us with two staggering challenges that if met—with vigor, with empathy, and with practicality—will make California a safer and more humane place for all.

Between 1980 and 2006, the prison population in California increased more than sevenfold, and the amount of money the state spent on corrections tripled.¹ The system became stretched to the breaking point: prisons were dangerously overcrowded, conditions were terribly poor, and provision of mental and physical health care woefully inadequate. In October 2006, the California Department of Corrections and Rehabilitation (CDCR) housed over 170,000 people at its thirty-three prisons, its camps, and in private facilities. More than 15,000 people were living in common areas like gymnasiums, which provided unsuitable accommodation for those housed there and deprived other prisoners the use of those common areas. Governor Arnold Schwarzenegger declared a state of emergency, noting that the overcrowding posed “a significant risk to the health and safety of the men and women who work inside these prisons and the inmates housed in them.” At the time, CDCR officials projected that the prison population would grow to more than 193,000 by 2011 if nothing were done to ease this crisis.

In 2009, a Federal court demanded that the state take action and reduce its prison population to 137.5% capacity, which would reduce the total prison population by about 40,000 people. California got to work. That same year, the state tweaked policies relating to probation and parole that would reduce the number of released offenders sent back to prison. In 2011, public safety realignment made counties and their jail systems responsible for nonserious, nonviolent offenders, which in one year reduced the prison population—if not the total number of incarcerated men, women, and children—by more than 27,000. Two voter initiatives—Proposition 36 in 2012 and Proposition 47 in 2014—amended California’s Three Strikes law and reclassified some felony drug and property crimes as misdemeanors. Through all of these efforts, the state reduced its prison population by 26 percent in less than a decade. In August 2015, CDCR facilities housed 111,400 people and another 16,600 were in camps, public facilities, and private facilities in California, Arizona, Mississippi, and Oklahoma.² On 31 July 2013, Governor Jerry Brown declared the emergency over.³

We now find ourselves moving into a new era—one moving away from mass incarceration, and away from crisis management, to one working with new insights, open to experimentation and new possibilities. Right now in California, we have the opportunity to address two related challenges that have plagued us from the start: how do we make prisons humane, and how do we make sure those who are released from prison lead productive lives—and don’t go back? While conditions have improved, we have much work left to do. Though California’s prisons met the target set by the court, its population numbers are still well above their actual design capacity of 82,707.⁴ A recent spike in suicides and suicide attempts at the California Institution for Women is drawing renewed attention to the woefully inadequate provision of mental health services in prison. Once released, former prisoners struggle to find the kind of suitable housing and employment that would encourage them to stay out of prison, and so the prison-to-Skid Row pipeline or other homeless situations become the fate of many former prisoners.

Increasingly, we want a kind of justice that feels more like fairness and less like primitive forms of vengeance, except for when we don’t—when we hope a sex offender is violated in prison, when we cheer the death sentence of a multiple murderer, when we hope that someone who hurt someone we love gets locked away forever. So it can be useful to think about prisons in terms of wider society, and not about what to do with individuals found guilty for crimes. Even when we do want to punish, we must remember that the vast majority of people who enter prison will eventually leave it.

If prisons must exist—and it’s difficult to imagine a future without them—what do we want from them? Are they merely for punishment and suffering, or separating dangerous people from society to provide public safety? Or are they places where those incarcerated for crimes can learn to contribute more positively to society and even experience forms of healing, growing in empathy, remorse, and understanding? California’s long-running ambivalence about the answers to these questions is perhaps best reflected by the name of the department that runs its prisons: the California Department of Corrections and Rehabilitation didn’t add “and Rehabilitation” to its name until 2004. Now that it seems that the immediate crisis is over, we can step back and begin to consider anew, as a society, what role prisons should play in California.

These are big questions, and the answers to them are complicated. But the signs are encouraging that we are finally moving in a direction that can allow us to grapple with them. The public has shown a willingness to move beyond the “tough on crime” stance that characterized the past several decades. When Proposition 47 passed in 2014, it did so with more than 60 percent of the vote. When realignment was instituted in 2011, its purpose wasn’t just to reduce the state prison population, as mandated by a federal court. By transferring responsibility for some prisoners from state prisons to county jails, through closer proximity this also opened up the possibility for local jurisdictions to try different approaches to working with low-level offenders and parolees—approaches that the state could never attempt with its one-size-fits-all ways of working. Counties have responded by expanding mental health and substance abuse counseling, cognitive behavioral treatment, and employment and housing programs, in addition to experimenting with alternatives to incarceration.⁵

Initial results have been encouraging. California’s prisons are no longer illegally overcrowded. Conditions within them have improved, recidivism rates are mostly unchanged, and a 2015 Public Policy Institute of California report indicated that violent crime rates were down—though it found that a rise in auto thefts was likely attributable to realignment. The story in 2016 is different. Crime rates are up in many California cities, but they are also up in cities across the country where these reforms have not been enacted. California once again, as ever, is at a crossroads. We can either commit to staying on the path of reform we’ve been on, or commit to spending billions of dollars building new facilities to house more of our fellow Californians.

Eventually, however, we will need to look past systemic changes and see the people they are affecting most directly. They are easy to ignore. Housed in often enormous complexes, they tend to be in out-of-the-way places, in low-lying buildings that blend into the background. Yet in June 2016, California’s state prisons were home to more than 113,000 men, women, and children.⁶ Fire camps, private, and out-of-state facilities incarcerated 15,000 more. If we think only about state budgets and public safety, we will miss the opportunity to consider what these men, women, and youth have to offer California. They are people, like you and me. Imperfect, like you and me. And like you and me, they will be shaping California’s future. They are not the sum of their offenses, even as we are not the sum of ours. Writing them off, banishing them forever, has not only been shown to be a failure as a policy, it’s also irresponsible and ultimately immoral.

While Jerry Brown, CDCR leadership, and the voters of California keep steady at reforming the policies that have inadequately governed our prisons, working to make them safer and more purposeful, a small army of activists, artists, writers, and counselors focuses on the people inside them. But much work remains. Improving inmate health care is of increasing importance as our prison population ages into their late senior years. Providing reliable access to good mental health care and counseling and ongoing job training are necessary for prisoners who will be released into a society with an economy vastly different from the one they left. Regulation of private prisons is desperately needed. Substance abuse treatment both inside and outside of prisons must be made available, as well as affordable housing, a community, and the list goes on.

In 2013, Boom interviewed Sharon Dolovich, a professor at UCLA’s School of Law, about the inhumane present and potential futures of prisons in California. She told us, “If in 2050 we look back on the current situation as a disaster that we managed to escape from with thoughtful, wise reforms, it will only be because in the intervening years we started to think differently about the shared humanity of the people in custody.” That shift has begun. It must continue.

Notes

1. Public Policy Institute of California, January 2016, http://www.ppic.org/content/pubs/report/R_116MLR.pdf.

2. Public Policy Institute of California, January 2016, http://www.ppic.org/content/pubs/report/R_116MLR.pdf.

3. https://www.gov.ca.gov/docs/Terminating_Prison_Overcrowding_Emergency_Proclamation_(10-4-06).pdf.

4. http://www.cdcr.ca.gov/news/3-judge-panel.html.

5. http://www.ppic.org/content/pubs/report/R_116MLR.pdf.

6. http://www.cdcr.ca.gov/Reports_Research/Offender_Information_Services_Branch/WeeklyWed/TPOP1A/TPOP1Ad160622.pdf.

A good look into California’s prison situation tells us a lot about what Californians believe about Californians. Look closely and you may not like what you see. Perhaps this is why, for far too long, Californians have been determined not to look at all.

At its founding as an American state, new Californians held their earliest prisoners, quite literally, at bay. Gold-seeking Australians and other non-American troublemakers were quickly dispatched on ships set in the San Francisco Bay—a scenario that promptly reached overcrowding. Not long in, these same captive laborers constructed their own prison on land—San Quentin—just two years after California became the thirty-first state. And we kept on building them, sending more and more of our fellow residents to them, until something had to be done.

California has long been pressed to deal with immense problems. While prison reform began in the United States not long after the nation’s founding, in California, change—whether for good or ill—seemed easier. This is still true with today’s movement to end mass incarceration, fueled by activists, academics, professionals, politicians, and practitioners. Hastened by the three-judge panel that found California’s prisons to be unconstitutionally overcrowded, the massive expansion trend has finally started to reverse course. Much of this effort is overseen by Governor Jerry Brown, who recently admitted that the mandatory sentencing policies he’d established in 1978 increased recidivism, with no incentive for prisoners who turn their lives around. This recent realization prompted his courageous call to relax mandatory sentencing with an initiative for the November ballot known as the Public Safety and Rehabilitation Act of 2016 (Prop. 57), called “dangerous” by former Governor Pete Wilson. California voters will once more get to decide if they want to continue the reforms now underway.

When we set out to work on this issue of Boom, we hypothesized that we may indeed be presenting a tough pill for Californians to swallow. We pondered what to call it. Uncaging California? There are a lot of people being released. The cells’ steel bars do look like cages, but prisoners aren’t animals; humans don’t go in cages. A moment of freeing California? Perhaps. But not everyone will be released. Abolishing the prison? This may be the vision of one or two contributors here, yes—but this is not realistic. Reforming. Revisioning the prison. Seeing the thing we hesitate to look at.

Many perspectives are represented in this issue of Boom. Mine, for starters: I served three years in the California Youth Authority during the era when guards referred to prison furniture as “Pete Wilson’s.” Staring into the abyss can have a strange effect on the observer. And yet, we are finding glimmers of hope in this moment of experimentation and new possibilities. Together we grapple with the California prison, its meaning, and its humanity. We do so with the sincere belief that positive reform is possible. We are realists, but optimists, too. We are Californians, after all.

The kinds of new possibilities that abound as Californians redress our correctional situation offer ongoing opportunities to better do justice for the future of California’s children, and those who have been deeply affected by the system.

A seminar course I teach to Honors students at Cal State Fullerton, which this summer became Boom‘s new institutional home, is called “American Institutions and Values.” The majority of the course focuses on the American story of punishment and the prison, including California’s, critically examining these institutions we’ve built and the values that gave them rise. Not unlike the majestic mural painted by Alfredo Santos in San Quentin telling the California story, shown in the photograph at the top of this letter, the prison tells our story.

As they look at the situation, my students are often shocked when they see the scale of the problem, holding a mirror to their own stories, many of which are already connected to the system. The history, of course, cannot be changed. But as each contribution to this issue of Boom notes, highlighted especially by one contributor who is at the beginning of an eleven-year prison sentence, our future, and that of our prisons, remains to be written. It’s to this end that we offer these pieces to you, our readers, as we imagine California’s future together, which will be shaped significantly by this present moment of prison reform.

It’s a privilege to share this issue with you as Boom‘s new editor. I am indebted to my predecessors Louis Warren, Carolyn Thomas, and, of course, Jon Christensen, whose spirit of rigorous optimism continues to imbue the journal with thoughtfulness, creativity, and beauty.

Yours,
Jason S. Sexton

Note

A fragment of one of Alfredo Santos’s six murals inside San Quentin’s dining hall. Photograph by Correctional Officer P. Jo.