Innovative Incarceration Could Result in Lower Costs and Safer Citizens


PrisonThe average annual cost to house a prisoner in California is $71,000, and according to the California’s Legislative Analyst’s Office, the cost has risen 45% since just 2011. And as costs have soared, California’s policymakers have resorted to creative ways to release inmates from California’s overcrowded prisons. But what if that Californian creativity could be harnessed to lower the cost of incarceration?

This process began in 2011, when the U.S. Supreme Court ruled that California must reduce its state prison population to no more than 137% of its design capacity within two years. In an attempt to comply, the state Legislature passed Assembly Bill 109, which required non-violent, non-serious, and non-sexual offenders with sentences of longer than one year to be housed in county jail facilities rather than state prisons.

Because AB109, the so-called prison “realignment,” merely shifted costs for incarceration from the state to the counties, two additional measures of significance were passed in an attempt to reduce the overall inmate population. These were sold to voters as reform initiatives, and both of them passed with substantial majorities. Prop. 47, passed in 2014, reclassified several felonies as misdemeanors, which had the effect of reducing prison sentences in new cases, and earlier release for prisoners sentenced for crimes no longer classified as felonies. Prop. 57, passed in 2016, granted early release opportunities to inmates with good behavior who had committed non-violent crimes.

These measures resulted in the early release of tens of thousands of inmates onto California’s streets. Since enactment, violent crime has increased in California, although the data is mixed. For example, according to the FBI, while violent crime in California increased in 2015 and 2016, it increased across most of the U.S. in those years. As stated in a recent study by the Public Policy Institute of California, “California’s violent crime rate increased by 3.7% in 2016 to 444 per 100,000 residents. There have been other recent upticks in 2012 and 2015, but the statewide rate is still comparable to levels in the late 1960s.”

More recently – most crime statistics for 2017 are not yet available – the L.A. Times reports that in 2017 “in Los Angeles, homicides are down, but violent crime is up.” A big picture perspective on crime trends in California can be seen in this graphic produced by Politifact.com using data from the California Legislative Analyst’s Office:

California Crime Trends – Crime Rates per 100,000 Residents

California Crime Trends

As can be seen, rates of crime in California rose throughout the 60s and 70s, reaching a high plateau that lasted right up until around 1994, when California passed the three strikes law. After that, crime rates fell precipitously for years, reaching historic lows. Since 2014, rates of crime have been rising, even though they remain relatively low from a historical perspective.

But why should we be happy with a 0.4% rate of violent crime? Why should 4% of Californians be victimized by a violent criminal in any given decade? And who’s to say that crime rates would not have continued to decline, if it weren’t for the passage of Props. 47 and 57?

More to the point, whether or not Californians should or should not incarcerate more criminals, or impose longer sentences on criminals, Californians don’t have that option. Because it costs too much to house prisoners in California. How can California house more inmates without building more conventional prisons, which are staggeringly expensive?

An excellent resource prepared by BackgroundChecks.org shows the costs per prisoner in other states. Nevada, our neighbor to the east, only spends $17,851 per year per prisoner. Alabama has the lowest cost, at $14,780 per prisoner. Arizona, $25,397. Even Oregon and Washington, California’s left coast comrades in bloated inefficient government excess, manage to spend far less than California does, paying per prisoner costs of $44,021 and $37,841, respectively.

Why?

When you read up on costs per prisoner in other states, the results are somewhat amusing. Because in those states, the conventional wisdom is that costs are out of control. Alabama’s costs per prisoner have “doubled since 2003.” In Nevada, “overtime costs continue to mount.” Imagine that. But in all states, the same factors contribute to rising costs to house prisoners. California just spends more, in every category. Here is a table from California’s Legislative Analyst’s Office showing details of the cost per prisoner.

California’s Costs per Prisoner – Itemized Costs

Costs per prisoner

It’s likely these costs are understated. Does “Security” include the additional amounts that will be necessary to properly fund the pensions that are due our correctional officers? Does “Facility Operations” include the payments on the billions that have been borrowed by the state to construct California’s 34 state prisons?

In the recently approved California state budget for 2017-18, $11.4 billion is allocated to the Department of Corrections, up another $286 million (2.6%) from last year. But again, this doesn’t begin to represent the true cost to taxpayers. A recent UCLA study estimated the cost of incarceration for just the County of Los Angeles at nearly $1.0 billion last year.

It’s likely the total cost to California’s taxpayers to incarcerate criminals – taking into account state and local expenses – is easily twice the $11.4 billion budgeted by the state. And these inflated costs can be attributed to two causes. First, the excessive costs caused by unionized government – pensions in particular, and excessive costs to build state prisons, caused by a union controlled state legislature requiring needlessly expensive project labor agreements. Second, and arguably even more significant, the overall excessive cost-of-living in California – also a byproduct of policies enacted by California’s union controlled state legislature – which makes everything more expensive.

The burden of realignment – foisting responsibility for state prisoners back onto the counties where they were convicted – is also an opportunity. Because counties, like states in our federal system, are laboratories of democracy, laboratories of policy. Why can’t California’s counties experiment with new modes of incarceration. If inmates are sequestered to Cal Fire to work the fire lines, why can’t they do other tasks throughout the rural regions of California? Why not use inmates to improve rural access roads, remove dead trees from our drought-stressed forests, or even work in agriculture?

While many inmates may be too dangerous to do this sort of work, with new technologies to monitor and control prisoners, it is possible that prisoners who would not be viable candidates for these programs in the past would be qualified today. Electronic monitoring devices are becoming increasingly sophisticated. Why not use these devices to monitor not only location, but heart rate or, who knows, even brain waves or other physical indicators of imminent fight or flight? Wouldn’t adding additional capabilities to these devices allow more effective means to deter escape and even prevent violence? Why not use swarms of inexpensive drones to hover in the vicinity of inmates, reducing the number of guards required, and replacing some or all layers of expensive security fencing? Why not equip these drones with nonlethal means to prevent escape or violence?

Law enforcement has stayed abreast of new technologies and that is one of the reasons rates of crime are down sharply across America. While the impact of new technologies must be constantly scrutinized, and some of them may be problematic, there is no reason not to extend these tools beyond law enforcement into the corrections industry. It’s reasonable to assume most inmates would prefer a virtual prison to the penitentiary. One that afforded them mobility, equal or greater safety, a mission, a chance to engage in a vocation, and fresh air. Such innovation might also bring welcome relief to taxpayers.

More California inmates are getting a second chance as parole board enters new era of discretion

As reported by the Los Angeles Times:

An Alameda County probation report details facts that Kao Saelee can’t change: He was 17 and armed with a sawed-off shotgun when he and three friends opened fire on a group of teens they believed belonged to a rival Oakland gang.

The spray of bullets instead struck Tsee Yorn and San Fou Saechao, both 13. It killed 7-year-old Sausio Saephan, a second-grader at nearby Garfield Elementary School who had tagged along with his older brother and was shot in the neck.

For years, members of the State Board of Parole Hearings could — and often would — deny prisoners early release based on their past, focusing solely on their criminal offense rather than whether or not they’d pose a safety risk in the future.

To inmates, it seemed an unspoken rule: Let no one out.

Now, the board has entered a new era, empowered to grant more offenders a chance at parole after a decade’s worth of court decisions and state laws that have broadened its discretion. With the greater legal flexibility, Gov. Jerry Brown has put the commission of 14 men and women at the front line of his effort to reduce the prison population and to focus more on rehabilitation rather than relying solely on punishment. …

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New Laws Would Soften Penalties for California Juvenile Criminals

Photo credit: Michael Coghlan via Flickr

Photo credit: Michael Coghlan via Flickr

In a fresh bid to reform California’s criminal justice system, Sacramento lawmakers have begun to advance several bills, many aimed at softening juvenile punishment. “Democratic state senators Holly Mitchell of Los Angeles and Ricardo Lara of Bell Gardens are proposing four bills intended to keep more youthful offenders out of the criminal justice system,” as the Associated Press noted.

“State senators in California on Monday introduced an eight-bill justice reform package focused on juveniles that would create a minimum age incarceration standard, a ban on sentencing minors to life without parole and Miranda rights protections,” according to Courthouse News. “Senate Bill 190 would extend financial relief to families with children in the justice system by nixing court administrative fees, and Senate Bill 395 would require minors to consult with an attorney before waiving their rights during interrogations.” Senate Bill 439, another piece of legislation, would tweak jurisdictional rules to ensure minors under the age of 12 do not wind up in juvenile court.

String of changes

At a recent hearing around the bills, lines of support and opposition took familiar shape. “Witnesses urged lawmakers to support legislation they said would ensure the fair treatment of children under the law,” the Los Angeles Times recalled. “But law enforcement groups and prosecutors said it could keep authorities from holding offenders accountable and hinder officers from carrying out investigations.”

At a recent appearance at a Sacramento elementary school, the bills’ two sponsors worked to portray their changes in rational and moral terms. “Mitchell, who chairs the Senate Budget Committee, acknowledged some minors are involved in serious crime,” Capital Public Radio reported. “But she spoke out against incarcerating children under 12 years old as if they were ‘pint-sized’ adults.”

Activists pushing to further liberalize California’s incarceration laws have seen statewide success focusing on the fraught relationship between crime and child punishment. “In recent years, state legislation and propositions have attempted to create greater court protections for young offenders and to lower the population of incarcerated youth, as research on brain development has found that children learn differently from adults and should be afforded a criminal justice approach centered on rehabilitation,” the Times noted separately. “The latest victory for criminal justice advocates was Proposition 57, which will now require a judge’s approval before most juvenile defendants can be tried in an adult court.”

Curbing prison culture

But adult justice also received some attention, with proposed amendments “weakening drug enhancement sentencing procedures, nixing public defender reimbursement fees for individuals found innocent by the court and sealing arrest records of those not convicted of a crime,” according to Courthouse News. “The lawmakers hope the reforms will reduce county costs related to minor drug sentences and remove employment barriers for people accused but not convicted of a felony or misdemeanor.”

Other recent criminal justice reforms have advanced quickly in Sacramento. One, targeting abuses in prison snitch rewards, passed its first legislative test with flying colors. “Assembly Bill 359 on Tuesday sailed unanimously through the state Assembly Public Safety Committee,” as the Orange County Register noted. “Under the bill, snitches like Mexican Mafia members Raymond “Puppet” Cuevas and Jose “Bouncer” Paredes would no longer be able to live like kings behind bars, raking in as much as $3,000 a case as well as cartons of Marlboro cigarettes, fast food, Xbox machines and other perks.”

“The bill caps all monetary and nonmonetary payments to informants at $100 per case, including any investigatory work. Currently, the cap is $50 per case for testimony and no limit in compensation for investigation,” the paper observed. “Additionally, the bill requires prosecutors to keep databases that track informant work and locations, and to turn detailed informant histories over to defense attorneys no later than 30 days before the preliminary hearing.”

This piece was originally published by CalWatchdog.com

Should felons be allowed to vote from behind jail bars?

As reported by the Los Angeles Times:

Thousands of felons serving time in county jails would be allowed to vote in California elections from behind bars under a bill moving swiftly through the state Legislature despite widespread opposition from law enforcement officials.

Assemblywoman Shirley Weber (D-San Diego) introduced the measure with an aim that providing convicts the right to vote will give them a better sense of belonging to society and possibly reduce their chances of committing new crimes when released.

“Civic participation can be a critical component of re-entry and has been linked to reduced recidivism,” Weber told her colleagues during a recent heated floor debate on the bill.

But police chiefs and sheriffs throughout California say the proposal that passed narrowly in the state Assembly undermines a longstanding social compact: those who commit a serious crime lose not only their freedom to live in society for a time but also their right to participate in democracy. …

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Wrongful convictions cost California taxpayers $282 million over 24 years, study finds

As reported by the Washington Post:

A California research project tried to do something no one’s ever done: determine the total cost of wrongful convictions. That cost being not just the settlements paid to innocent defendants, but the unnecessary costs of prosecuting and incarcerating them, plus the total legal bills of their criminal trials and appeals.

Beginning the project in 2012 and working backwards to 1989, the study found 692 people who were convicted of felonies in California but whose cases were later dismissed or acquitted on retrial. Those people spent a total of 2,346 years in custody and cost California taxpayers an estimated $282 million when adjusted for inflation, according to the Chief Justice Earl Warren Institute on Law and Social Policy at the University of California, Berkeley School of Law, which released the study last week.

Now for some scale: Those 692 failed convictions over 24 years were part of a California system that convicts more than 200,000 people every year. Some may argue, the report notes, that 692 mistakes over more than two decades “reflects an acceptable rate of error. We reject the proposition that an acceptable rate of error can apply to proceedings that impact people’s lives in the way that criminal prosecution can…Just as with airline safety and medical mistakes, the acceptable rate of error is zero and that should be the goal.”

The researchers also note …

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In a first, California agrees to pay for transgender inmate’s sex reassignment

As reported by the Los Angeles Times:

California is first in the nation to agree to pay for a transgender inmate’s sex reassignment operation, but the state’s settlement of a recent court case sidesteps the question of whether such surgery is a constitutional right.

The state concedes that Shiloh Quine, who entered the California prison system in 1980 as Rodney, suffers severe gender dysphoria that can be treated only by physically conforming her body to her psychological gender.

The agreement to settle Quine’s federal lawsuit seeking the surgery was announced late Friday, with a brief statement from the corrections department that “every medical doctor and mental health clinician who has reviewed this case, including two independent mental health experts, determined that this surgery is medically necessary for Quine.”

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Judge Rules CA Inmate Entitled to Sex-Change Operation — With Taxpayer Money

What looked at first like a belated April Fool’s Day joke may turn out to be a landmark ruling in Eighth Amendment jurisprudence. On April 2, a federal district court judge in San Francisco ruled that a convicted murderer serving a 17-years-to-life sentence is entitled to a sex-change operation at taxpayer expense. Judge Jon Tigar, a Barack Obama appointee, determined that Jeffrey Bryan Norsworthy should have the $100,000 procedure “as promptly as possible.”

Though no inmate in a California prison has ever received sex-reassignment surgery while in custody, Judge Tigar found that the Eighth Amendment of the U.S. Constitution requires that Norsworthy receive a vaginoplasty — a procedure that involves removing the patient’s male genitals and creating female genitals. In 38 pages of judicial reasoning, Tigar declared that forcing Norsworthy to keep his male parts while behind bars at the all-male Mule Creek State Prison in Ione amounts to “cruel and unusual punishment.” This is a decision bordering on lunacy.

In 2000, a prison psychiatrist diagnosed Norsworthy with “gender dysphoria,” meaning that he would like to be a woman instead of a man. According to experts, this condition can cause frustration and anxiety for “transsexual” men who are disgusted by their male genitalia. In extreme cases, untreated gender dysphoria can lead to suicide or self-castration. The American Psychiatric Association, which not so long ago treated homosexuality as a mental disorder, now has elaborate and presumably more enlightened views on the subject of gender-identity disorder, which Judge Tigar dutifully adopted. Though prison records list Norsworthy by his given name, Tigar’s opinion refers to him throughout as “Michelle-Lael Norsworthy” and describes him as a “pleasant looking woman.”

At only 16 words, the Eighth Amendment is the most succinct article of the Bill of Rights and has nothing to say about vaginoplasty. It states, in its entirety, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The ban on cruel and unusual punishments was meant to limit gruesome penal methods such as flogging, stoning, and burning at the stake. (Ironically, castration has been held to be cruel and unusual, but in the Norsworthy case, a judge is ruling that significantly more intrusive surgery is constitutionally required.)

To contend that “forcing” a prisoner to continue as a man violates the Constitution is absurd. Norsworthy was born male, and he was male when he committed a murder on April 15, 1987 and when he was sentenced to prison later that year. Though he is allowed to take female hormones, have a pony tail, wear a brassiere, and shower out of the sight of other inmates in prison, he has been a male for all of his 51 years. Manifestly, the state of California did not make Norsworthy a male. His punishmentwhich is what the relevant provisions of the Eighth Amendment address—did not include a specification of his sex or gender. Rather, prison authorities merely decided that Norsworthy is not eligible for an elective cosmetic procedure at government expense while incarcerated. In this regard, vaginoplasty is no different than a facelift, tummy tuck, liposuction, nose job, Botox injections, or lap band surgery. No federal appellate court has recognized a right to sex-reassignment surgery. In the only related case that Tigar cites in his decision, the First U.S. Circuit Court reversed a district court ruling that had ordered the procedure for an inmate in Massachusetts. What Norsworthy chooses to do with his body at his own expense, if and when he is released from prison, is up to him.

Judge Tigar is a Berkeley-educated activist judge and the son of noted radical lawyer Michael Tigar, who once represented Angela Davis. He displays what University of Colorado law school professor Paul Campos terms “jurismania”: the irrational conceit lawyers and judges frequently exhibit that presumes all of society’s problems—no matter how complex or intractable—can and should be solved through litigation, especially if the “solution” is characterized as an interpretation of “constitutional law.” In his 1998 book of the same title, Campos contends that the “obsessive pursuit” of litigation and “irrational worship” of legal rules in contemporary American culture “can come to resemble a form of mental illness.” Resorting excessively to legal procedures comes at the expense of common sense and leads to “tendentious jargon,” self-serving posturing, fraudulent rhetoric, undue deference to “experts,” and overreliance on decision-making by privileged elites such as lawyers and judges—all of which are on display in Judge Tigar’s ruling.

Punishing criminals is a basic state function, and deciding how (and at what expense) to run prisons is a quintessential legislative judgment. As long as prisoners are adequately fed and housed and are not arbitrarily abused, it should be of no concern to a judge—and especially a federal judge—whether prisoners have access to color TV, air-conditioning, recreational facilities, or elective medical procedures. Serving a prison sentence is a punishment; it is not supposed to be enjoyable.

It is nonsensical to grant imprisoned convicted felons health-care “entitlements” that many law-abiding, hardworking taxpayers don’t enjoy. One hopes that the state appeals Judge Tigar’s unprecedented ruling. Unless resisted, jurismania will destroy popular sovereignty. Campos reminds us that judges are “nothing more than an especially politicized subclass of lawyers.” And they rely on the docility of their subjects to impose their baseless edicts. Jeffrey Norsworthy is not Rosa Parks, vaginoplasty is not a civil right, and Tigar’s ridiculous decision is not a credible interpretation of the Constitution. It should not stand.

State prison officials aim to halt prisoner’s sex reassignment

As reported by the San Francisco Chronicle:

California prison officials moved Friday to halt a transgender prison inmate’s court-ordered sex reassignment surgery, arguing that the unprecedented order was medically unnecessary and would subject prison health care to “an inmate’s personal preferences.”

The Department of Corrections and Rehabilitation asked U.S. District JudgeJon Tigar to suspend his April 2 ruling — allowing Michelle Lael-Norsworthyto undergo male-to-female surgery — while the state asks a federal appeals court to overturn the ruling. It was the first such judicial order in California and the second in the nation.

Lael-Norsworthy, 51, was convicted of second-degree murder in 1987. She has identified as a woman since the mid-1990s, has received hormone therapy in prison since 2000 and has the appearance and voice of a woman. She remains housed in men’s prisons.

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