Stop Digging, California

California is now being forced to reduce its state prison population. This is an opportunity to drastically reduce the number of prisoners and save a ton of money, but it appears that the state will shun the opportunity to improve the situation. Instead of releasing the prisoners to rehabilitation programs or putting them on tether, the state will dump the state prisoners into county jails that are not in much better shape than the state prisons.

The Supreme Court, in Brown v. Plata, File 09-1233, ruled that the lower courts properly ordered California to reduce its prison population The decision describes horrific conditions in California prisons due to massive overcrowding. The decision is available at the following URL:

In Eighteenth Century England, sentencing conformed to no rule but retribution. As Robert Hughes related:

The idea that prisons could not reform criminals but were incubators of crime was the merest commonplace in the 1780s; every one, magistrates included, took it for granted. There was no attempt to classify or segregate prisoners by age, sex, or gravity of crime. Women were thrown in the same common ward as men, first offenders with hardened recidivists, inoffensive civil debtors with homosexual rapists. All prisoners, authority thought, were united by the common fact of their malignant otherness….There was no need for fine distinctions in the black hole.

The common simile for the prison was a monastery or seminary, a closed order of people who studied vice, not holiness — an appealing figure in its perfect inversion. To Henry Fielding in 1751, prisons were ‘no other than…seminaries of idleness, and common sewers of nastiness and disease.’ [Fielding, Enquiry at 214.]….The line continued to Australia in the 1820s, where one finds Governor Thomas Brisbane complaining that ‘The Convict-Barracks of New South Wales remind me of the Monasteries of Spain. They contain a population of consumers who produce nothing.’ [Brisbane to Bathhurst, November 29, 1823, xi Historical Records of Australia 181.]”

Hughes, The Fatal Shore, The Epic of Australia’s Founding 38 (Knopf 1987).

Compare Hughes’s remarks with this passage from Plata v. Brown:

A medical expert described living quarters in converted gymnasiums or dayrooms, where large numbers of prisoners may share just a few toiletsand showers, as “‘breeding grounds for disease.’”7 Juris. App. 102a. Cramped conditions promote unrest and vio-lence, making it difficult for prison officials to monitor andcontrol the prison population. On any given day, prisoners in the general prison population may become ill, thus entering the plaintiff class; and overcrowding may preventimmediate medical attention necessary to avoid suffering,death, or spread of disease. After one prisoner was as-saulted in a crowded gymnasium, prison staff did not even learn of the injury until the prisoner had been dead for several hours. Slip. Op. at 22.

Justice Kennedy continued, describing two suicides by hanging. He observed that the prison authorities did not remove attachment points in cells because there was no place to put the prisoners held in those cells while the repairs were made. One might argue that it would be more humane to install attachment points to facilitate suicides so that prisoners could take action to end their misery.

To support the argument that California’s prisons are so bad that only a court-ordered reduction in head count would alleviate the suffering, Justice Kennedy quoted the former head of correctional systems in Washington, Maine, and Pennsylvania, as describing California’s prisons as “crimino-genic.” The Justice observed that California’s present recidivism rate is among the highest in the Nation and that each year “California communities are burdenedwith absorbing 123,000 offenders returning from prison, often more dangerous than when they left.”

Last year, Michigan saved $105,000,000 by reducing its state prison population by 7,000. This did not compromise public safety. Michigan is not experiencing a tsunami of violent crime this year. Yes, some released prisoners will commit new crimes. That is to be expected. However, some citizens who have never been in trouble before will be prosecuted and sent to prison. The “law-&-order” lobby will never be satisfied unless every crime carries a long mandatory prison sentence and the Parole Board automatically denies consideration for parole for every prisoner. We must resist the knee-jerk tendency to push criminal sentences up every time the legislature comes together. Most prison inmates are excellent parole candidates, provided that they have some rehabilitative structure after release.

Most drug offenders in prison were low-level dealers who were trying to make enough money to get by; they were not drug kingpins. Sex offenders, believe it or not, have a very low rate of recidivism. Furthermore, the great majority of sex offenders in prison and on the sex-offender registry are not serial rapists. They were inebriated or careless in choosing their partners or they were caught having sex in a parked car or behind bushes in a park. Some sex offenders were prosecuted for something as innocuous as peeing off the side of a boat or into a bush.

Our incarceration rate is still too high, but at least Michigan is moving in the right direction. California seems determined to train generation after generation of repeat offenders. By brutalizing its prison population, California is guaranteeing that those who “max” out of prison will be unable to adjust to life on the outside. To get out of the hole it has dug itself into California must stop digging. That means that it has to make a sincere effort to reduce its prison population through parole and rehabilitation. Dumping state prisoners into local jails will just get the state deeper into the hole.


John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
©2011 John B. Payne, Attorney

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