Dysfunctional" - Redemption Doubtful
by Marvin Mentor
Culminating a multi-year crescendo of criticism leveled at California's Corrections system from frustrated legislative, judicial and executive leaders, the Corrections Independent Review Panel (CIRP) recently tasked by Governor Schwarzenegger declared in its 359 page June 30, 2004 report, Reforming Corrections, that Corrections was in such disrepair as to be dysfunctional." The panel, chaired by former California Governor George Deukmejian (under whose earlier leadership Corrections more than doubled in size), was unflinching in its derogation of Corrections' past management as well as of the overly influential prison guards union, the California Correctional Peace Officers Association (CCPOA). This system is in chaos," said Joseph Gunn, executive director of the blue ribbon CIRP, when testifying at a California Senate hearing. He unabashedly described the system as so far gone it can't reform itself without independent outside public oversight from a [civilian] commission," which he called the linchpin" of the CIRP report's 239 recommended changes. But less than 24 hours after the report's release, Governor Schwarzenegger flatly rejected the civilian oversight commission concept because it would diminish his executive branch power. Corrections Oversight Committee co-chair Senator Gloria Romero was dumbfounded" that the CIRP report would thus be rendered dead on arrival" before any legislative hearings could be convened to consider it. On January 5, 2005, Governor Schwarzenegger announced a reorganization of Corrections (renamed the Department of Correctional and Rehabilitative Services) which, while sweeping, omitted CIRP's recommended civilian oversight foundation.
To fully air the problem, this article will recount underlying findings of the California State Auditor, the Office of Inspector General (independent watchdog agency overseeing Corrections), the Special Master of the United States District Court (for California Department of Corrections (CDC) issues), as well as of the CIRP. Finally, although critics are doubtful that Corrections can be meaningfully redeemed from within, this writer will offer a hopeful incentive-based solution that, if adopted, would of its own force drive all parties towards the meaningful reinvention of corrections," the demise of artificially synthesized recidivism," and the motivation of successful reintegration of released prisoners into society.
California Department of Corrections: A Behemoth
With 165,000 incarcerated prisoners in 33 prisons and another 114,000 on parole, and with 54,000 employees (including 31,000 guards) feasting on a $6.2 billion annual budget, CDC is unquestionably a challenge to manage. Even the basic task of housing prisoners is problematic, with the population at about 200% of prison design capacity. Add in the medical needs of an aging segment of 27,000 lifers (who are being politically denied parole) and 641 on Death Row, the daunting task presented by gangs, protective custody isolation, violent offender classification, and infectious disease treatment - and you've got a mammoth puzzle. When failures occur, lawsuits invariably follow, with Corrections losing suits over the years on Death Row rights, mental health treatment, basic medical care, AIDS and Hepatitis-C treatment, Youth Authority abuses, timely parole revocation hearings, and deadly mistreatment by guards.
But Corrections' problems do not end with prisoner-fomented issues; the 54,000 staff require discipline, too. Documented staff problems include bringing drugs and other serious contraband into the prisons, sexual trysts with prisoners, sexual harassment of both prisoners and other staff, on-duty fights between staff, beatings/abuse of prisoners and racially motivated strife among staff and prisoners alike.
Guards are sworn peace officers, allegedly held to high ethical and moral standards. But when they are charged with crimes in or outside of prison, their union (CCPOA) comes to their defense with lawyers. Due process is afforded by the Office of Investigative Services (OIS), an internal CDC department charged with resolution of Category II (serious) staff charges. However, a major failing is that 25% of the time OIS fails to complete their investigation" of serious charges on a peace officer within the twelve month jurisdictional time limit, thus causing a total dismissal of charges. And when guards are fired, the State Personnel Board reinstates 62% of them with full back pay.
All of this might have been swept out of public view, except that inquiring state auditors, the state Inspector General and the federal courts have put their feet down. The investigative news media have had a feeding frenzy on these events, augmented by their persistent use of the state Public Records Act to uncover and report on the wrongdoings and concomitant gargantuan waste of taxpayer money. An overarching theme is that the prison guards' union has paid millions of dollars from its dues-generated treasury to politicians - from the Governor to Senators and Assembly Members (see sidebar: Pay to Play). This investment buys unprecedented guards' contract provisions - including a 37% pay raise, intervention on management decisions, preview of video tapes used in pending guard disciplinary actions, abusive sick leave and overtime policies, and more. With California mired in financial crisis, the unending growth of hemorrhaging prison expenditures has become the target of official criticism. We begin with the State Auditor.
Excessive Guard Overtime Chastised
Already in July, 2002, the State Auditor reported (Report No. 2002-101) that the inability of CDC to hire enough guards (they had 20,000 to handle 157,000 prisoners) was a driving factor in rising cost overruns. Specifically, the lack of 3,200 new hires -- projected to not be corrected until 2009 because of limited training facilities -- was causing $220 million in guard overtime pay, versus the budgeted $74 million. Added to CDC's budget shortfall of $200 million, in the previous year, the costs were deemed out of control.
The Auditor noted that an overtime bid policy based on seniority caused overtime hours to be billed at the highest rates. One senior guard averaged 167 hours of overtime on top of each 168 hour normal pay period for six months. This practice, in turn, only caused increases in on-the-job injury, illness and workers compensation claims. And the five year guards' contract that was ratified in February, 2002 was projected to cost another $518 million per year. The basic remedy recommended by the Auditor to minimize costs was simply to hire more guards to work at straight time rates.
The Auditor revisited CDC in its October, 2004 Report No. 2004-105. Here the topic was the untimely processing of employee disciplinary actions. With the 1,000 adverse actions in 2002 having had an average processing time of 285 days (the statutory limit is 365 days for peace officers, and three years for other staff), approximately 25% of peace officer cases and 12% of non-peace officer cases had to be dropped for exceeding time limits. Part of the frustration came from protections afforded by California's unique Peace Officer Bill of Rights (POBAR), which provides access to witness tapes, gives 30 days notice of intent to impose discipline plus 30 days time to oppose any adverse comment placed in a personnel file, and gives protection against the use of lie detectors, photographs, personal information disclosures and locker searches. [On May 3, 2004, Attorney General Lockyer filed suit in Sacramento Superior Court challenging the legality of such compelled video-tape disclosures.]
CDC responded that it was aware of these shortfalls and was preparing upgrades already in response to a scathing report on the same subject by a federal judge overseeing supermax Pelican Bay State Prison's legendary staff brutality complaints. In particular, CDC's upgrade of its disciplinary code would set strict guidelines for each type of employee misconduct, with standardized penalties. This would include imposition of salary cuts and suspensions for employees who lie under oath or otherwise to refuse expose wrongdoing (Code of Silence). [One wonders why a peace officer lying under oath would not be simply charged with perjury, private citizens don't have the luxury of taking a pay cut in lieu of felony prosecution.]. It remains to be seen what the CDC actually does since prison systems inherently require a lack of staff accountability to function as they do.
The Auditor recommended a litany of procedural improvements. Not lost on the Auditor was the $11 million that CDC spent annually in legal expenses processing employee misconduct and discipline actions.
CDC's Watchdog Barks
California's Legislature, in its wisdom (Penal Code (PC) § 6125), created an independent watchdog agency, the Office of the Inspector General (OIG),to monitor, investigate and report on all aspects of the correctional system. First investigating, then seeking interactive response from CDC, it issues periodic reports to the Legislature. In October, 2001 [Special Review of the Office of Investigative Services, CDC] (and again in March, 2002 [Review of the Employee Disciplinary Process, CDC, it reported on CDC's four year-old internal employee discipline group, the Office of Investigative Services (OIS).
The 2001 report identified management issues that jeopardized the OIS's effectiveness. These included an inaccurate and unreliable management information system, no system for prioritizing cases, abuse of overtime pay, inadequate oversight of field offices, inadequate background checks of both its own investigators as well as borrowed staff, lack of training, and deficiencies in handling and storing evidence.
The OIS is tasked with investigating employee felonious conduct, inappropriate relationships with other employees or prisoners, conduct involving moral turpitude, reported spousal abuse, misuse/theft of state property, misuse of peace officer status, excessive force against prisoners, Code of Silence" dishonesty, association with prison gangs and drug/contraband smuggling.
The 2001 study found that the OIS, with 60 Special Agents, was so understaffed that it had to borrow 38 untrained, hastily screened bodies from CDC. Even so, the 60 day period mandated for completion of investigations (violated 85% of the time) was being blown, on average, by 181 days. Limited by the one-year ceiling (California Government Code § 3304(d)), the logjam (slow-playing?) caused 10% of these officer disciplinees to walk" on Category II cases due to time exhaustion.
Moreover, the thorough" background check (required by PC § 6065(b)(I)) of any peace officer appointed as an OIS agent was being flouted by a departmental limit of 11 hours for each candidate. As a result, references were not checked; financial histories were omitted; past serious disciplinaries were not investigated; and psychological exams were not on file. The OIG recommended elimination of the 11 hour cap.
Training records revealed that 39% of new agents never completed the 40 hour basic training requirement within one year, and only 43% completed the required 16 hours of annual retraining.
In 19% of the case files reviewed, there was no conflict-of-interest certification. In other files, conflicts were acknowledged, but simply ignored. And in yet other cases, OIS agents were tasked with adjudging incidents they had personally investigated in former CDC staff assignments.
Criticism of evidence handling included: unalarmed evidence room; six staff members other than the evidence room custodian making entries and processing evidence; armory room staff having unfettered access to the evidence room; the evidence custodian using loose sheets instead of a bound logbook, as required; and an audit revealing undocumented removal of evidence.
The March, 2002 OIG review of CDC's employee disciplinary processing revealed worse results than in 2001. In the Category II peace officer cases sampled, now 43% blew the 365 day processing time limit. The OIG found that CDC did not even have clear guidelines for defining the one-year period. The OIG also discovered that CDC had not established policies and procedures governing settlement of employee disciplinary actions, and had no means of monitoring or evaluating the settlement process. 31 % of settled case files contained no documentation of the rationale for the settlement. This lack of standards was highlighted by settlement rates that varied from 13% at one prison to 57% at another. In other words, peace officer discipline for Category II misbehavior was more likely than not to be settled" on a standard-less okey-doke" or mooted through excessive processing time. The OIG recommended a major policy review. [On September 16, 2004, a new disciplinary manual dispensing uniform punishment statewide was introduced, while a Bill requiring it was on the Governor's desk awaiting signature.]
The Judiciary Weighs In
After fifteen years of fighting CDC on excess use-of-force on prisoners at supermax Pelican Bay State Prison (PBSP), as well as trying to mitigate the cruel and unusual punishment of indeterminate ad-seg housing instituted to allegedly isolate ethnic and gang enemies (see, e.g., Madrid v. Gomez, 889 F. Supp. 1146 (N.D. Cal. (1995)), District Judge Thelton E. Henderson relied upon his Special Master, John Hagar, to report again on the status of court-ordered (Post-Powers) changes to CDC's unconstitutional PBSP policies. (See: Madrid v. Woodford, C 90-3094-T.E.H., Special Master's Final Report Re Department of Corrections Post Powers' Investigations and Employee Discipline, June 24, 2004.)
Powers" (PBSP Sgt. E.M. Powers) and guard J.R. Garcia were convicted in federal court (U.S.D.C., N.D. Cal. Case No. CR-00-0105 MJJ; affirmed, U.S. v. Garcia, 9th Cir., Oct. 29, 2004, U.S. App. LEXIS 22559) on conspiracy and violation of prisoners' rights (18 U.S.C. §§ 242, 243) and sentenced to six years in prison. Their crimes were to set up the fatal stabbing of an alleged child molester in the PBSP yard, the assault of another prisoner in the gym and the assault of a third prisoner in the chapel. Following trial, U.S. Attorney Melinda Haag gave the case files to CDC for use in administrative misconduct proceedings.
But the essence of the Judge Henderson's angst was that the court-approved use-of-force remedial plan" had not been followed. Rather, the perpetrators and their investigators engaged in cover-ups to quash any administrative punishment. When Judge Henderson assigned Hagar to investigate, the problems escalated to include a Code of Silence" evasion of fact-finding, CCPOA interference with the investigation, and perjury accusations against then CDC Director Edward Alameida and Chief Deputy Director Thomas Moore. Hagar's interim report to the court in January, 2004 revealed a pattern of suppression of guard misconduct investigations that caused the court to expand its orders beyond just PBSP.
Hagar's investigation at CDC's Directorate level resulted in the accusation of CCPOA-supported guard misconduct cover-ups by Alameida and Moore on three specified occasions. One such event, in July 2003, questioned the sudden CCPOA-proposed budget cutting" closure of a 51-person internal investigations office in Rancho Cucamonga wherein ostracized investigators Robert Moldanado and Richard Feaster had successfully probed guards' beating of shackled prisoners at Chino State Prison. Other cases pending involved guard-prisoner sex and staff's smuggling of drugs. Alameida's Investigative Services Director Martin Hoshino wrote a December 29, 2003 memo that ordered agents from the closed Rancho Cucamonga office not to speak to the state Legislature, their staff, the Governor's office or the news media. Senators Romero and Jackie Speier called this a violation of the First Amendment and whistleblower protection statutes.
Another Chino incident was the accusation of guard Shayne Ziska (then a candidate for CCPOA chapter president), who after being on paid administrative leave for four years pending an FBI investigation (see: PLN, Nov. 2003, p.3), was indicted in July, 2004 for aiding the Nazi Low Riders prison gang. His charges include participating in a corrupt organization, conspiracy, violent crime aiding racketeering and deprivation of rights under color of law - allegedly helping the Nazi Low Riders to distribute drugs and assault two prisoners. Awaiting prosecution in the Metropolitan Detention Center in Los Angeles, Ziska now faces up to 60 years imprisonment.
Alameida also drew heat from his firing of Folsom State Prison Warden Diana Butler over alleged mishandling of investigations of a major riot in 2002, followed by the removal from Folsom of every high ranking official down to and including the Captain level. Captain Doug Pieper committed suicide when he was pressured to cover up the riot investigation. Folsom Associate Warden Max Lemon received death threats from prison staff when he broke the silence and testified -literally in tears - to the Legislature.
A third event connected Alameida to the guards' Green Wall" code-of-silence clique.
Special Master Reports Corruption
Hagar implicated Alameida and the CCPOA in his reports to the court, depicting a culture of corruption and cover-up at the highest levels of CDC that became a template for unprincipled behavior throughout the department. Timely, fair and effective investigations may well be impossible," he wrote, adding that the labor contract provided the CCPOA with the ideal instrument to enforce the code of silence." Hagar found that PBSP had become a breeding ground for guards to learn to misbehave on the job. Some correctional officers acquire a prisoner's mentality: they form gangs, align with guards and spread the code of silence." [Editor's Note: The code of silence exists more as the exception than the rule among prisoners who lack the resources and means to enforce it that prison staff have at their disposal.] Hagar added that criminal investigations concerning guard misconduct at PBSP have been disrupted over the last 10 years by the CCPOA," citing evidence of document tampering and pressure by union officials to not talk to internal affairs investigators.
Hagar had specific examples of union largesse: Guard Schembri told the truth about a fellow guard's assault on a prisoner for which Schembri was labeled a rat; but guard Lewis was fired after he fatally shot a prisoner and used racial slurs against others - for which Lewis was honored at a later guard union convention as a hero." Senator Speier found Hagar's report a more riveting read than The Da Vinci Code," commenting, This corroborates my worst nightmares about what's going on inside our institutions. When corrupt people are watching over corrupt people, the only thing that results is corruption&. There's a thug mentality that must be ended within the CCPOA." Alameida later admitted in a sworn statement that he had been called in by high-ranking officials in former Gov. Davis' administration and was told to consider union budget proposals that spared union jobs but slashed managerial jobs. (Davis had accepted over $3 million from the CCPOA.)
Hagar's final report on PBSP concluded unequivocally that Alameida and Moore, at CDC headquarters, had shut down court-ordered PBSP disciplinary investigations of Powers and Garcia at the urging of the CCPOA. Hagar found that Moore and Alameida had simply lied regarding their termination of the post-Powers investigation. Hagar concluded by recommending criminal investigations of Alameida and Moore, plus perjury and civil contempt charges against CDC until CDC overhauled its internal affairs policies.
Judge Henderson was further upset by whistle-blower Richard Krupp's July 26, 2004 letter describing how headquarters cover-ups were still alive and well. Krupp, an internal CDC auditor, had exposed and documented out-of-control sick leave and overtime procedures used by guards -- since ballooned to $250 million worth -- and properly reported it. His reward was to be harassed and transferred to a dead-end job reading 200 college students' research proposals about visiting prisons. On July 2, 2004, nine days after Krupp testified to the Senate Rules Committee about management abuses in CDC, Chief of Institutions Division Julio Valadez ordered an investigation of Krupp's wife, a 25-year employee of CDC, whose alleged offense" was to report suspected abuse of CDC car fleets to her supervisor. Both Krupps are now suing CDC.
Henderson threatened a federal takeover of CDC, to which Governor Schwarzenegger shrugged, He can take it. It's no sweat off my back." In December, 2003, Alameida resigned. In July, 2004, Judge Henderson accepted Alameida's declining mental health concerns to drop criminal proceedings against him. Moore is still facing civil sanctions for closing out the post-Powers" perjury investigation at CDC headquarters. It remains to be seen if, when all is said and done, anyone is held accountable.
In November, 2004, Henderson issued a 27-page ruling following Hagar's final report, finding that Alameida had engaged in gross abuses of the public trust [by electing to] shut down the investigations in order to appease the CCPOA." He ordered sweeping new powers to Hagar to monitor use-of-force, guard misconduct investigations and code of silence" abuses throughout the state - in essence, a mini-takeover." Henderson's order expressly excluded CCPOA from participating in use-of-force reviews at PBSP. Significantly, Hagar also received authority to investigate the CCPOA's labor contract, to ensure that it does not undermine any of Henderson's previously ordered remedial plans. Henderson's order openly lauded the recent appointments of Corrections Secretary Roderick Hickman and CDC Director Jeanne Woodford as a positive step. But Senator Speier was more candid, The judge knows that the influence of the union is what ails the Department of Corrections.
Hickman, a former guard and continuing CCPOA member, knows that influence," too. His hard line stance has drawn heat from the website Paco Villa's CCPOA blog," which belittles Hickman (nicknamed Spud) and his reforms - depicting him as the Cowardly Lion of the Wizard of Oz.
Governor Arnold Schwarzenegger was well aware when he was elected in November, 2003 that the then $5.6 billion state correctional system was in disarray, wrapped in secrecy and with almost no accountability, financial or otherwise." He found out the gruesome details when the handpicked panel of 36 (CIRP) that he appointed to independently review Corrections delivered its report, Reforming Corrections. But he did not anticipate the strong medicine prescribed by CIRP leader, former Governor George Deukmejian, a Republican law-and-order conservative who himself spearheaded the massive expansion of CDC in the 1980s. Management in corrections has been deficient and dysfunctional," Deukmejian wrote. It's extremely important that we have an independent [civilian] commission to lead the way and monitor what's going on.
Reaction was mixed. Schwarzenegger's aides moved to quickly dismiss the idea of a civilian commission. Criminal justice experts applauded CIRP's conclusion that more education, drug testing and job-training programs for prisoners were the way to cut California's excessive parole failures, noting that this was a move back to a rehabilitation model. Senator Romero was disappointed. Is this all there is?" Her corrections oversight committee co-chair Senator Speier thought the civilian commission made no sense because they would have no experience in the prison system.
CIRP: Corrections Has Fatal Flaws
Reforming Corrections begins ominously. California's correctional system suffers from a multitude of problems -- out-of-control costs; a recidivism rate exceeding that of any other state; reported abuses of inmates by correctional officers; an employee disciplinary system that fails to punish wrongdoers; and the failure of correctional institutions to provide wards and inmates with mandated health care and other services.
How did it [fail]? The answers are complex, yet simple: there has been too much political interference, too much union control, and too little management courage, accountability, and transparency.
The legislative confirmation process has given the state wardens who ... owe their allegiance to political forces rather than to a set of principles and to the corrections organization. Each warden acts as a feudal baron. [Even] the Secretary [of Corrections] has little or no power.
It is clear that the pendulum has shifted too far to the union's side. The union has been granted authority over traditional management rights&. These concessions have undermined the ability of... management to direct and control the activities of the department.
The report goes on to describe the equally disturbing failure to develop capable leaders with the courage or integrity to stand up to political pressure.
So, just who wrote such a damning report? Not some liberal prisoner-coddlers. The 36-person team included twelve from CDC, four from the Youth Authority, three from the GIG, eight from the California Highway Patrol, three from the BPT all led by former Governor Deukmejian. These veterans had carnal knowledge from decades of in-the-trenches experience. They labored for four months, and then spoke honestly.
The prime recommendations were (1) reorganize Corrections from the top down; (2) change the culture - getting rid of the code of silence" and reinforcing strong ethical behavior; (3) select and train the best employee candidates; (4) establish and enforce fair employee discipline and use-of-force policies; (5) change the prison experience from warehousing to preparation for reentry to society.
Reform Must Start At The Top
From their own career experiences, this panel personally knew that a bureaucracy of peace officers could never succeed. For this reason, they laid down the fundamental premise that Corrections must be run by a Civilian Corrections Commission, to function as the department's Board of Directors. This concept mirrors that of many large city police departments, and is widely respected. Reforming Corrections outlines the new organizational structure -- a flattening of the three prior independent CDC, Youth Authority and BPI hierarchies.
Importantly, the role of labor unions should be limited to wages, hours, working conditions and health and safety of their members." They should not participate in management functions" and their participation in disciplinary procedures should be limited to a representation role of bargaining units." Merit should replace seniority for job assignments. And misconduct and citizens' complaint documents should not be purged from employee files.
Next, a Code of Conduct will be drawn up, which every employee must sign. Public transparency will be provided by making the Civilian Corrections Commission meetings open to the public. Reforming Corrections recommends that the use-of-force policies developed at PBSP under federal court pressure become the statewide model. Job descriptions must be written for all levels. For example, there were no job descriptions for wardens and many other key positions. And a risk management group is recommended to assess budding legal or fiscal problems so as to permit damage control.
Upbraiding the current healthcare program, CIRP instead recommends a novel marriage of Corrections with the University of California to develop and deliver medical, mental and dental health care.
Recidivism is attacked by implementing a program that defines each day of a prisoner's time in a plan to prepare him/her for reentry. Concepts embrace education, substance abuse training/treatment, vocational classes and life skills. On the other end, low-risk parolees should be discharged from parole earlier than -- as little as three months after release -- and be provided with community assistance.
Reforming Corrections anticipates closing prisons, but not before 9,500 ugly" beds are decommissioned. These include triple-bunks, double-celling in 35 square foot cells, and day rooms and gymnasiums used as dorms.
CIRP looks forward to the expiration of the current CCPOA contract in July, 2006 to make a clean slate consistent with the new goals of Corrections.
Finally, CIRP found Corrections' use of information technology woefully antiquated," and recommended a major upgrade.
Implementing CIRP's Plan
Reforming Corrections begins with a strategic plan in each of the above areas - encompassing a total of 239 specific; prioritized changes. (A 48 page appendix offers all proposed statutory and constitutional changes in a cookbook form suitable for legislative implementation.)
In addition to the Civilian Commission and compression of the three major current departments into one Department of Correctional Services (DCS), the plan eliminates the BPT, the Narcotic Addict Evaluation Authority Board, the Youth Authority Board, the Prison Industry Authority Board and the Joint Venture Policy Advisory Board. All these functions are absorbed into the new DCS.
Regarding ethics and culture, the Code of Conduct punishes cooperation with the code of silence." Off-duty peace officer conduct is demanded now to be identical to the high standard required on duty. Each employee will be annually rated as to conformance with these standards.
Under Personnel, salaries shall be adjusted - up or down - commensurate with responsibility. Hiring preference will be given to peace officer candidates with college training, law enforcement experience, or military experience. A Behavioral Science Unit shall be established to provide psychological reviews of employees.
As to adoption of prison regulations, CIRP recommends eliminating conformance with the Administrative Procedures Act. A step that will further enhance lawlessness in the Department. The prisoner appeals process will be streamlined, and all medical appeals shall be answered by a doctor.
The key to reforming the system lies in reducing the numbers." CIRP proposes a three-prong approach to cutting California's prison population, but only for non-violent offenders (i.e., not subject to strike-enhanced or life terms). First, release suitable prisoners over age 60. Second, establish supplemental sentence reducing credits based upon completion of specified educational, vocational or drug-treatment goals. Third, develop a presumptive sentencing model" for new commitments. This would entail the sentencing judge giving both a maximum term and a presumptive" term (perhaps one half). Each such prisoner would be given a rehabilitative plan -- with goals -- upon arrival. Release could come at any time (after the presumptive term is served) that the goals are completed. This amounts to sort of an indeterminate sentencing law, but with a fixed top and no parole board.
California's largest pool of potential prisoners is its 114,000 parolees, whom union parole agents draw from in a bed-vacancy-driven recidivism" program. To reduce the parole violator population, CIRP proposes discharging low risk parolees in three months after release, as well as implementing alternatives to return-to-custody of electronics monitoring, halfway houses and drug treatment programs.(See: www.reportcpr.ca.gov/corr/reporthtm.)
The Governor Responds
In his January 5, 2005 State of the State address, Gov. Schwarzenegger announced he was recasting CDC, the BPT and the Youth Authority into a unitary Department of Correctional and Rehabilitative Services (DCRS), effective as early as July, 2005. It's a philosophy change," Secretary Hickman explained, adding there has been too much political influence, too much union control and too little management courage and accountability.
Indeed, the R" word (rehabilitation) hasn't been seen in California since it was formally written out of the Penal Code (§ 1170) in 1977, when the Indeterminate Sentencing Law was replaced by the Determinate Sentencing Law. That same watershed change gave birth to the Board of Prison Terms (BPT), which was directed by the Legislature to normally" fix lifer parole terms at the initial parole eligibility hearing. But under political influence [and] union control," the BPT did everything but fix terms - initially or later. Now, under the new DCRS, the BPT has been eliminated and its functions absorbed.
In fact, this change is consistent with a scathing January, 2003 report by the GIG (Review of the Board of Prison Terms) on the inefficiency of the BPT.
Then Inspector General Steve White ridiculed an earlier BPT request for 24 extra deputy commissioners on top of the existing 60 -- saying that the BPT was so inefficient, it could do its job with only 30 deputy commissioners, if they worked harder. Bluntly accusing them of regularly overstating how much time they spent in hearings by as much as 150%," White reported they worked less than seven hours per day.
The report also cited the BPT for having 7,000 prisoners backlogged awaiting parole revocation hearings -- many of whom were past their release dates by the time the hearing was held. (See: Valdivia v. Davis, 206 F.Supp.2d 1068 (E.D. Cal. 2002); PLN, Jan. 2003, p.16, Apr. 2004, p.24). And 2,000 lifer parole hearings were two years in arrears -- a problem addressed by the Legislature (PC § 3041 (d)) to permit Board panels to use one instead of two full commissioners. But after catching up, the BPT has again fallen behind -- the subject of a class action petition certified November 30, 2004 by the Marin Superior Court (In re Rutherford, Case No. SC135399A).
Parole Division Head Ousted
Upon reading the CIRP and its 239 change recommendations, Senator Gloria Romero critiqued, This is about rearranging deck chairs on a Titanic that we are promised will be leak-proof.
But one chair has already been moved. The Chair of CDC's Parole Division, Rick Rimmer, was ousted from his job on December 1, 2004 for failure to reduce CDC's population via reduced recidivism." In May, 2004, Secretary Hickman and Director Woodford had announced a new education-based reform of California's parole system, previously branded in 2003 by the Little Hoover Commission (an independent legislative investigative panel) as a billion dollar failure" for its 70% three-year recidivism rate -- the highest in the country. But where the new" program was projected to reduce CDC's population to 156,300 by December 2004, it instead rose to 164,966.
Guards' union spokesman Scott Johnson said, They gave him an impossible task to do - without the tools to do it with." Even Director Woodford told Senator Speier that the new programs could never get off the ground due to hiring and contract freezes." Nonetheless, the universally praised Rimmer was shifted to the Employment Law Unit, while from another deck chair, the equally respected Institutions Division's Jim L'Etoile took over paroles.
Is Corrections Redeemable?
A government agency the size of CDC is by definition a bureaucracy--54,000 employees obviously need structure. But with influence coming from the CCPOA, the Legislature, grandstanding politicians, political special interest groups, the OIG, the Little Hoover Commission - not to mention the indefatigable press - CDC is a veritable pressure cooker.
Experts have expressed their reservations about CDC succeeding in reforming itself. Former Inspector General (now Judge) Steve White stated that within three months after changes were announced, it would be business as usual" again. Prison Law Office attorney Donald Specter remarked, The prison system is too big and too impaired by the California bureaucracy to function properly." Joe Gunn, Executive Director of the CIRP, testified to the Senate on September 8, 2004 that without the proposed civilian oversight commission - the linchpin" of Reforming Corrections - meaningful prison reform in California just won't happen&. Unless corrections has a commission driving reform, I don't see them ultimately succeeding." Gov. Deukmejian himself -- eschewing any pure bureaucracy - exhorted Gov. Schwarzenegger, It's extremely important that we have an independent commission.
As a start, in May, 2004, CDC announced a reform of the parole system. Aimed at successfully transitioning non-violent parolees back into the community, the program focused on alternative sanctions for violators, including electronic monitoring, halfway houses and residential drug treatment programs. Officials predicted a 15,000 prisoner drop in CDC's population over three years, allowing for closure of up to three prisons. Instead, former Parole's Chief Rimmer reported little progress, due to a bureaucratic nightmare.
His real problem, however, was that recidivism" in CDC is an artifact. Parole's distorted definition of recidivism" is in reality the bed-vacancy-driven return-to-custody of technical" parole violators determined daily at the sole discretion of its union parole agents. As a result, The Inn" is always full.
California Is Solving The
The goal both of current programs and proposed reforms is to optimize the bureaucracy. This writer believes that California is solving the wrong problem. The problem needing repair is that every CDC employee is currently financially incentified to keep prisoners in and then coming back. No CDC employee is financially incentified to have prisoners successfully reintegrate into society. The present motivation is unswervingly to fill beds -- where more jobs, more promotions and more overtime are the reward. Corrections" has been thus reduced to a cynical oxymoron.
It's no secret that the CCPOA has figured this out. Yet, it is theLegislature's responsibility -- not the union's -- to set the agenda. But the sad truth is that California's legislators, elected with millions of dollars of CCPOA donations, have become as addicted to the status quo as the worst junkie is to heroin. A new paradigm is needed.
Incentify Successful Reintegration
The courage to break this vicious cycle may have to come from Governor Schwarzenegger, who takes money from everyone except unions. His task would be to order that every employee of California's corrections authority shall have their compensation tied to a specified goal of reducing the number of prison releasees who return to prison with a new crime - with one and three year benchmarks.
First, correctional" staff should be incentified to function in a counseling role to guide release-eligible prisoners towards making it" on the outside - in contrast with the adversarial posture now. Thus, corrections" should not be confused with the current objective of warehousing.
Second, California should eliminate the concept of parole -- following the lead of the United States and most states, and adopt true determinate sentencing. It should instead provide Reintegration Counselors - who are by definition not peace officers - to receive releasees into the community, and to pay their rent, food and utilities until they become self-supporting. The counselors would help find jobs and otherwise be support persons. Prisoners have already mastered survival on the inside; what they need is guidance in achieving it on the outside. Reintegration counselors would receive substantial cash awards when their clients reach specified crime-free-life benchmarks. The cost of this program would come from the elimination of the misnomered recidivists," i.e., technical" parole violators. In 2000, one-half of all CDC prisoners were such technical violators --74,000 of them -- in prison not upon the verdict of a jury or the order of a judge, but solely at the discretion of union parole agents.
The value of this approach is multifold. First, many prisons could be closed, aiding California's $8 billion structural deficit. Second, and more importantly, a sizeable number of violators," who for years have been caught in parole's revolving door, could gain a real opportunity to break the cycle. The misused term recidivism" would thus be relegated to its original meaning - conviction of new crimes.
The State Auditor, the OIG, the court's Special Master and the CIRP are unanimous: California's corrections system is dysfunctional." It has no goal, and certainly no incentive, to correct." Corrections is instead the puppet of competing political and financial special interests, one in which the prisoners and their family members are voiceless and powerless bystanders despite being the most obviously impacted and affected. California's bottomless bankrolling of its corrections system thus turns out to be the very wherewithal of the system's failure. Until there are financially incentified goals - measured by the successful reintegration of offenders - this writer believes that redemption of Corrections will remain doubtfu1.
Likewise, the absence of accountability by staff at all levels, for misconduct and crimes committed in the course of their prison employment ensures no significant change will occur. The lack of staff accountability erodes respect for the law when prisoners see people serving life sentences for shop-lifting while staff members who commit serious felonies, up to and including murder, walk scott free. It makes a mockery of the concept that all people are equal under the law and that no one is above the law.
The current crisis is no surprise. It has been brewing for almost 30 years when George Jackson and other activists complained of many of the same problems. In the 1970's significant changes were made to the California prison system: the enactment of the Inmate Bill of Rights (since repealed) and partial determinate sentencing being the most significant. Since that apex, things have gone downhill. Despite numerous commissions, reports, lawsuits and such in the past 25 years, the prison system has grown by over 500% and its problems have been magnified by size and scale accordingly. It remains to be seen if any meaningful change for the better occurs this time around.
Sources: Sacramento Bee, Los Angeles Times, San Francisco Daily Journal, Contra Costa Times.
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