What’s going on with Prop 57?

Previously, we covered Prop 57 and saw its great potential for tangible criminal justice & prison reform. But after passing by a solid margin on the November ’16 ballot, we’re still waiting for the implementation. CDCR recently released a regulations & recommendations memo that is a serious departure from the policies voters approved. Most notably; incarcerated folks are not allowed to apply all earned credits retroactively, third strikers convicted of non-violent felonies are not allowed to participate in the early parole process, and youth offenders are not eligible to use earned credits for early release. This is an incredibly blatant disregard for the will of the community.

CDCR posted a series of responses to frequent comments they received during the open comment period, but the answers are well, um, underwhelming.

  • When asked why the Department won’t allow folks to earn all credits retroactively, they reply “CDCR has not amended the regulations to allow inmates to earn Good Conduct Credit, Milestone Completion Credit or Rehabilitative Achievement Credit retroactively. Notably, both Educational Merit Credit and Extraordinary Conduct Credit may be earned retroactively”. Good news first. Allowing educational credits & extraordinary credits to be applied retroactively is consistent with the language of Prop 57 and is a common sense approach given all that we know about the positive impact education has on recidivism rates. Now, for the bad news. Since CDCR wasn’t uniformly collecting data on who was completing milestone credits or rehabilitative achievement credit in the past, it would create a disparate impact to only apply the credits for those who’s documentation is available. Further, many incarcerated individuals didn’t know such programs would be relevant to an early release mechanism in the future and may have chosen work assignments instead. The result is that all will be forced to re-take such classes to earn the credits, but CDCR hasn’t signaled that they will increase their capacity to offer such programs.

 

  • When prompted to allow non-violent third strikers to participate in the early non-violent parole process, they reply “Criminal sentencing is the exclusive role of the Courts and CDCR will defer to the process set forth in Proposition 36 and will not unilaterally ‘re-sentence’ a Third Striker to a lesser term so that he or she can participate. Including Third Strikers was also determined to be inconsistent with
    public safety.” Few things to note here. It’s true that Prop 36 was passed to deal directly with the proliferation of third strikers, but it seems as if CDCR is seeing the two initiatives as mutually exclusive. But that does not have to be the case! Another equally valid (but perhaps naively optimistic) interpretation could be, say, ‘It seems like voters really want to end mass incarceration & want to reduce the population of third strikers in CA prisons. Let’s use the tools they’ve given us to do just that in an efficient manner!’ Alas, this piece-meal approach of seeing two overlapping initiatives as fundamentally incompatible does not inspire confidence in the implementation capabilities of CDCR. Notice also the use of ‘public safety’ in the memo. The past forty years of criminal justice policies, and really all of humanity, serve as a testament that anything & everything under the sun is justifiable under this standard of protecting community welfare. Behind this veil of public safety society has institutionalized other-ing as an acceptable tactic for crime prevention. This remains a serious obstacle to meaningful prison reform

 

  • When nudged to explain why juvenile offenders can’t apply credits to advance parole hearings, the answers are similarly designed to punt responsibility to other tentacles of the criminal justice system. “CDCR has not amended the regulations to allow credits to apply to the timing of a youth offender hearing before the Board of Parole Hearings … CDCR has maintained the Legislative intent behind the youth offender law.” The disconnected nature of the criminal justice system lends itself to creating the present conundrum. Californians are telling CDCR to do one thing, but the legislature has existing laws that directly conflict with these reformist goals. With conflicting puppeteers attempting to pull their strings, CDCR does the one thing they’ve mastered: complacency in the face of injustice.

 

The ethos of Prop 57 involves a greater investment in the rehabilitation of incarcerated folks. These recommendations however sound like preparing to take half a step forward, but not before deliberately taking another dozen steps backwards. This recent reformist era (circa 2012) starting with Prop 36, Prop 47 in 2014, and now Prop 57 illustrates the gap between the will of the people and the will of the agency in charge of the largest human caging regime in the world. Make no mistake about it, CDCR is a sociopolitical regime built on racial capitalism & this dynamic isn’t going to be dismantled over night. If fully implemented as the voters approved, Prop 57 could shrink the monster down to a manageable size. But the implementation recommendations passed down by CDCR won’t fundamentally alter the carceral landscape. The struggle continues.

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Prison reform & Firefighting

Incarcerated men & women in CA have a long history as supplemental fire fighters. Starting in the 1940’s, these folks were recruited to replace the men who went abroad to participate in World War II. More than 3,900 men & women, including juvenile offenders, voluntarily serve on the force today for one dollar an hour. (‘Volunteer’ is an awkward term in this context, but we’ll get into that later). Collectively, they make up roughly 1/3rd of CA’s wildfire-fighting personnel. These folks work an average of 10 million hours each year responding to fires & are spread out at 43 conservation camps.

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Incarcerated fire fighters are forced to perform the most dangerous tasks associated with fire-fighting. Often, they operate as the first line of defense against spreading fires, and are tasked with digging trenches or clearing spaces from combustible material to stop or redirect advancing flames. So far this year, two of these folks have died in the line of duty.

CDCR claimed that only low-level non-violent incarcerated folks were eligible to participate in these programs. But after Realignment, none of those types of individuals were left in prisons. The result is a firefighting force made up by 40% of folks with violent charges. (Note: ‘violent offenders’ is a wildly imprecise term).

Let’s return to the conversation about ‘volunteer’ fire fighters. Few things in a prison environment could be said to be truly volunteer, and volunteer in this context implicates themes of coercion, abuse, & exploitation. Many may join these fire camps to escape the banality of prison ecosystems. Folks at fire camps are not confined behind fences, it’s perhaps a more welcoming environment for family visits, they receive better pay than average prison jobs, & they can accelerate their time off by earning credits for early release. But they still receive very little in returning for risking their lives, & for doing work that is incredibly valuable to CA. During the fire season they frequently work 24 hour shifts for less than a tenth of their civilian counterparts. They also save CA over $100 million each year — money that otherwise would be spent on civilian firefighters.

The number of incarcerated firefighters in CA has fallen 13% since 2008. Now seems like a good time to mention that these highly trained folks who risk their lives for one dollar an hour are barred from being professional firefighters once released from prison because of felony convictions. It should also be noted that future natural disasters like forest fires in CA are unavoidable & inevitable.

Challenging felony disenfranchisement in CA

In CA, incarcerated men & women, and folks on parole for a felony conviction, are legally barred from voting. A new petition known as the Voting Restoration & Democracy Act of 2018 is trying to alter that. The petition needs somewhere around 568,000 signatures to qualify as a valid initiative to be placed on the November ’18 ballot.

180,000 Californians cannot vote because of a felony conviction. Like many criminal justice policies, the disparate effects are geographically isolated. In South Central Los Angeles, only 42% of the adult population retains the right to vote. Most other developed countries allow people to vote from prison. In fact, the US could be said to have the world’s most restrictive criminal disenfranchisement laws. Only 2 states in the US do not remove the right to vote for people sent to prison (Maine & Vermont).

Studies have shown that restoring voting rights lowers the risk of recidivism. We shouldn’t want folks returning from prison to feel disconnected from society, because those are precisely the folks who will be less equipped to to renter their communities as productive citizens. Removing a person’s right to vote as punishment for a crime is based on outdated ways of thinking. Incarcerated men and women are still human beings with unalienable human rights and should not be be denied the right to participate in the democratic process.

You can help collect signatures for the initiative here and mail completed petitions here.

Good books to read Part V

It’s been a while since we’ve done a book review post. Read earlier posts here:

Part I

Part II

Part III

Part IV

Inferno: An Anatomy of American Punishment — Robert Ferguson

Why do Americans tolerate the current punishment regime in the United States? This overarching question guides this book by blending in historical, philosophical, and legal answers. Ferguson makes the central argument that most Americans fail to grasp the reality of prison life, which allows punishment to be increased with little regard for human consequences. The compartmentalized nature of criminal justice institutions leads to a diffusion of responsibility and an escalation of pain in punishment. The omnipresent metaphor of Dante’s Inferno provides an opportunity to pivot from current practices that condemn souls to hell to a purgatory based system that punishes with an eye towards future redemption. Folks with a side passion for literature will really enjoy this book, as Ferguson references Dostoevsky, Kafka, Dante, and Hugo repeatedly. This creative book offers a refreshing take on the usual cut and dry positions articulated in the prison literature landscape.

The Warehouse Prison: Disposal of the New Dangerous Class — John Irwin

John Irwin is the GOAT of prison sociology literature. In this work from 2004, Irwin traces the historical development of prisons while drawing parallels to the contemporary carceral archipelago. Societies have evolved from the corporal punishment era of inflicting wanton pain and suffering for trivial offenses, but the new prison regime is similarly situated in it’s neglect for human rights. Irwin asks fundamental questions about how we should think about prisons in today’s day and age. Are they serving a noble purpose in protecting the general welfare of society by confining dangerous criminals? Or, just perhaps, is there a more sinister motive at play? The same demographic groups are targeted by prisons today that were at the inception of State sanctioned punitive practices — mostly poor, people of color. Irwin’s writing style is accessible and easy to digest, a testament to his lasting legacy on prison reform scholarship.

Arbitrary Justice: The Power of the American Prosecutor — Angela J. Davis

Prosecutors are the prime culprits for this era of hyper incarceration. If we can ever hope to emerge on the other side of this punitive tidal wave, we need to understand the nuances of prosecutorial behavior. Success for prosecutors is measured in convictions, but often this runs antithetical to a mission of serving justice. Davis, a former public defender in D.C. for a dozen years, takes readers behind the scenes and reveals an inherently problematic legal landscape. Prosecutors hold all the cards in charging decisions and plea bargaining, and Davis demonstrates how even well-intentioned prosecutors can perpetuate injustices. But for all the damaging aspects of prosecutorial misconduct Davis highlights, it’s equally informative about simple avenues for reform. A slender book written by a lawyer in lawyer language, it’s nonetheless vital reading for those interested in tangible prosecutorial reform efforts.

The Modern Prison Paradox — Amy E. Lerman

Professor Lerman sets out to help readers understand the many layers of this punitive moment in history. Crime control policies of the past half-century have given rise to institutions that recreate the conditions that produce criminality in the first place. Increasingly harsh prison conditions foster social norms necessary for survival inside, but damaging for reintegration once on the outside. Further, Lerman sets out to measure the impact of harsher prisons on correctional staff and their evolving relationships with incarcerated subjects, plus family and friends outside of the prison. This book reinforces the notion that time spent in prison is not some type of deep freeze during which individuals remain unchanged. Rather, we should see prisons as small communities unto themselves. An excellent read for folks interested in a deep dive into how the other half lives.

Unrelated to the book — Lerman spent time tutoring at San Quentin State Prison in the same program as this blogger.

In the Mix: Struggle and Survival in a Women’s Prison — Barbara Owen

Professor Owen spent three years conducting ethnographic research at the largest woman’s prison in the world: CCWF – Central CA Women’s facility in Chowchilla. Published in the mid 90’s, Owen takes readers inside the culture of a women’s prison by letting the women inside share their narratives. The culture of women’s prisons is markedly different from the degradation, violence, and predatory structure of male prison life. In some ways, the culture of the female prison seeks to accommodate these struggles rather than to exploit them. The study of women in prison must be viewed through the lens of patriarchy and its implications for the everyday lives of women. Unlike male prisons in CA, female prisons are not racially segregated and racial identity places a less animating role in relationships. The strengths of this book are the moving anecdotes shared by the women. Some examples:

  • ‘See, when you come in here, you deal with exactly who you are. You become who you really are and you deal with feelings that you have not had to deal with in years. All this is coming out. I was not pretty when I was out there. I think I am pretty now and you feel good about yourself’.
  • ‘Yeah, I consider myself just playin’ the hand that I was dealt. And in life, no one asks for the hand that they’re given. Now that I’m older, I can change it or stay with the situation or complain about my present situation, or whatever, but you know I don’t choose to do that, I choose to say, hey, okay, yeah, and so now it’s time for me to take some responsibility. It is up to me’.
  • ‘Here you can become you. And you can get what is inside really out. And sometimes that is not really pretty. And for some people that can be very scary. You have to learn to be honest with yourself here. You can’t hide behind a bunch of lies like maybe you did on the streets. It is the hardest thing in here and it is the step that hurts everybody the most. You have to realize what you have done to people and the things you have done wrong’.

In Search of Safety: Confronting Inequality in Women’s imprisonment — Barbara Owen

Owen’s specialized knowledge of women’s imprisonment is put on full display in this recent book. The mobilizing factor in women’s imprisonment is capital, and a crucial lack thereof. But a lack of capital doesn’t just confine women’s lives on the outside, it haunts them even while incarcerated in complex ways. Certain sections of this book directly call out Orange is the New Black which promoted mainstream attention to the plight of incarcerated women, but relied on lazy stereotypes. The conclusion is especially salient as it attempts to implement the Mandela Rules for humane prison conditions. A powerful read that builds on the narrative forged by In the Mix. 

A semantic point of departure

Don’t refer to incarcerated individuals as prisoners. They are not prisoners, they are folks who’ve been prisonized by the State. Referring to them as such trivializes their identities by defining them solely by the institution that confines them. It becomes much easier to rely on stereotypical depictions of incarcerated folks when they are labeled as prisoners. ‘Prisoner’ carries an inherently negative connotation pinned up by notions of disgust & incorrigibility. We can alter this damaging palimpsest by moving away from these monolithic characterizations. Instead of seeing Joe as a prisoner unworthy of respect, we should see him in a holistic light as someone who, perhaps, suffered from a lack of economic autonomy in life that guided his behavior that led to his incarceration.

In many ways, this argument is similar to referring to immigrants as undocumented instead of illegal aliens. No human being is illegal just as no human belongs in a cage. We can begin to shrink the social distance of incarceration by changing the language we use in common discourse. It is a simple step that reaps immediate short and long-term benefits. In the short term, we can begin the process of re-humanizing hundreds of thousands of fellow Californians who are currently incarcerated. In the long term, we can ease their transition back to society by acknowledging their experiences and offering second chances.

For those unmotivated by these humanitarian rationales (which is doubtful for the three readers of this blog), we can always fall back on the profound cost of incarceration as a mobilizing factor. By distancing ourselves from the lifetime sentence of being branded a prisoner we can extend more economic & social opportunities to help these folks from ever returning to prison. ‘Prisoners’ are barred from reintegrating back into mainstream society by over 40,000 legal discriminatory barriers. Individuals who have complex pasts that involved structural injustices and self-inflicted harms should enter an ecosystem eager to help them move forward, not eager to send them back at all turns.

Often, folks don’t believe in second chances until they need one themselves. Implicit in this line of reasoning is the idea that in this country it would be incredibly wrong for someone to receive something they don’t deserve. Empathy should be a foundational quality society is built on. In order for it to become so, we must be the catalysts for the change we want to see. This isn’t a call to social justice warriors, it’s a call for basic human decency.

 

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