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August 8, 2006 - San Jose Mercury News (CA)

OpEd: How To Fix Our Broken Prisons

By Peter Y. Sussman

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With a unanimity rare in public policy circles, politicians, penal experts, judges and special commissions are agreed: Every facet of California's $8 billion-a-year prison system is in a state of collapse.

Gov. Arnold Schwarzenegger has described his Department of Corrections and Rehabilitation as "falling apart in front of our very eyes." His top assistant calls the dangerously overcrowded system "a powder keg." And the man brought in by a federal court to correct health-care conditions it found unconstitutional says the level of care "is at or below Third World standards."

Schwarzenegger, pedaling hard to assert at least some display of authority over the paralyzed prison system, called the Legislature into special session. With legislators convening Monday, the governor has yet to present a well-thought-out package of reforms addressing the system's structural ills and abuses. His initial improvisational proposals included one that would limit the number of times inmates in overcrowded prisons can flush their toilets.

Schwarzenegger has since offered more comprehensive, costly and unbudgeted proposals, but in their current form, few of them are expected to have much more impact on the underlying crisis than controlling inmates' toilet flushing. Nor is the election-year climate -- or the campaign money that comes with it -- conducive to systemic remedies.

To effect significant change, even in a non-election year, politicians would need to buck both the financial power of the prison guards' union and a reflexive fear of crime among Californians that has led to ever-longer sentences during a period when violent crime was decreasing dramatically. Scholarly evidence suggests that the reduction in crime may well be unrelated to one of the biggest prison-building sprees in history -- 22 new California prisons and a five-fold increase in the adult incarceration rate over 20 years, at the end of which our prisons were twice as overcrowded as they were before construction started.

In the end, the state's best hope for a long-term fix might be that the federal courts, either directly or through legal pressure on the state, set the agenda.

The heart of the governor's package is a prison construction program that would cost taxpayers $12 billion and be financed through an expensive type of bond that bypasses the electorate, which has rejected previous prison bond issues.

Though details are sparse, the governor's construction wish list includes two major new prisons, several-dozen small, local lockups and additions to current prisons that together would house tens of thousands of inmates. He has also talked of paying private prisons and other jurisdictions to take thousands more inmates off our hands. Operational costs would add many millions more to the bill for the new prisons.

No one expects construction alone to be sufficient to meet the projected or even immediate demand. At current rates of imprisonment, we could be out of prison beds in eight to 10 months.

With the volatile prisons crammed with 171,000 convicts, twice the buildings' designed capacity, the governor's proposals have a kind of superficial logic. Schwarzenegger hopes that construction would keep the public safe and create room to house and rehabilitate prisoners now sleeping in gyms, corridors and day rooms.

But "you build them, you fill them," as one critic put it. In practice, building more prisons results only in more prisoners and ballooning costs. Overcrowding worsens as funds are diverted to prison structures instead of the already-starved programs to help people develop skills for surviving outside prisons.

The governor's plan ignores the consensus of numerous expert studies - -- including those of a panel he appointed that was headed by former law-and-order Gov. George Deukmejian. As the Deukmejian commission put it, "The key to reforming the system lies in reducing the numbers."

How did one of the nation's most respected prison systems descend over several decades into what today is considered in national correctional circles a dysfunctional disgrace, not to mention a gold-plated albatross for taxpayers? There's plenty of blame to spread around.

Since the late 1970s, the state has relied on so-called determinate sentencing -- long, inflexible terms that offer no incentive for prisoners to enter rehabilitative programs. Sentences are unrelated to an individual's potential for violence or prospects for success outside prison, or to public safety, prison space or budgetary capacity.

Prisoners who will one day rejoin society -- and that's most of them - -- have nothing to show for their years in prison except bitterness and enough "gate money" to purchase a few days' supply of heroin. The predictable consequence is that our recidivism rate is the highest in the nation: 70 percent.

The most extreme form of determinate sentencing, the voter-approved three-strikes initiative, has resulted in increasing numbers of long-term and geriatric prisoners. The increase in elderly patients is adding new costs to our soaring prison bills. The average annual cost of incarceration is $31,000, but the Legislative Analyst's Office reported in 2004 that elderly inmates are "two to three times more expensive to incarcerate yet they have a high level of success on parole."

Voter approval of three-strikes was an emotional response to the murder of Polly Klaas -- a single horrible, if unusual, crime that was generalized and magnified grotesquely by politicians, journalists, prison guards and victims' rights groups formed and financed by the guards' union, the California Correctional Peace Officers Association. Both Schwarzenegger and his challenger in November, Phil Angelides, have declared three-strikes untouchable. (Angelides has also supported expedited prison construction.)

Provoking fear of crime is an effective electoral strategy, so politicians of both parties in recent decades have responded to each new headline with longer prison terms for the crime-of-the-moment. In addition, the guards' union adeptly muscles political support for ever-greater reliance on imprisonment, thereby increasing its ranks and influence. The union is amassing a $15 million war chest for November's elections. And it has purchased $5 million worth of television time in October to support candidates to be named later, presumably based on their compliance with the guards' wishes in the interim.

The union has been powerful enough not only to assure its members extravagant benefits but also to thwart rehabilitation reforms, secure longer sentences and gain effective veto power over many prison management decisions, leading to the premature resignation of two successive top prison officials.

Longer sentences aren't the prison system's only burdens. Add to the mix:

* Well over 10,000 mentally ill inmates for whom we have developed no effective alternative since Gov. Ronald Reagan closed the mental hospitals. A federal judge, who previously found "deliberate indifference" and "gross inadequacies" in the treatment of mentally ill prisoners, has declared that it's time to "pay the piper. And it's going to be horrifically expensive."

* The state's imprisonment of many drug users rather than providing them treatment in the community. Approximately 20 percent of the inmate population is there because of drug use, sales or manufacturing.

* The almost complete abandonment of prison literacy, vocational and addiction programs considered essential to success on the outside.

* The revolving door of parole. Overburdened parole officers supervise more than 116,000 parolees, a tenfold increase in 24 years. With few resources at their disposal, about all parole officers can do is return to prison parolees who have not met technical conditions of parole, such as missing drug tests. About 59,000 felon parole violators -- more than a third of the total prison census -- were returned to custody in 2004 alone for violation of parole conditions. The comparable figure for 1980: 1,602.

* State contracting, purchasing, budgeting and personnel straitjackets that have stymied previous attempts at reform. Robert Sillen, the court-appointed health-care receiver, blames the rules for retention of incompetent prison doctors, expensive and inefficient inmate treatment, abysmal medical facilities and exorbitantly priced, unneeded medicines, not to mention scores of unnecessary deaths a year. An audit by State Controller Steve Westly released last week confirmed Sillen's conclusions and added lurid details like one surgeon's $1.48 million in bills for a year's services at two prisons.

There is surprising consensus among court and academic experts on the key reforms that are needed to ease these interwoven crises. Essential components include reduced and proportionate sentencing; dramatic increases in humane health care and parole and in-prison re-entry programs; effective prison and parole management systems insulated from political and union pressures; and more openness to the press and public so that an informed electorate can help establish the state's priorities.

Because they want to insulate the renewal process from political pressures, some reformers are placing their hopes in the federal courts, including the one that has taken over the health-care system and is increasingly impatient with the state's continued failure to fulfill court-ordered obligations.

The state's incompetence or intransigence on health-care and various other issues now before the courts could lead to court jurisdiction over ever-larger segments of the prison and parole systems.

If the courts were to broaden their jurisdiction further -- and if that expansion survived any legal challenges -- the key would be to put operational control in the hands of people immune to political pressure and free of bureaucratic encumbrances. One idea being floated is the establishment of an executive commission of nationally respected outsiders -- judicial and correctional experts -- operating under the federal court umbrella and exercising administrative control in lieu of the secretary of corrections.

Similar extraordinary outside management may be needed to oversee a massive shift of funding priorities from prison custody to programs designed to help parolees stay out of prison. That would probably need to be coupled with some carefully controlled early releases of non-violent prisoners to immediately free up prison beds and money for remedial programs.

Perhaps most important would be an overhaul of the state's sentencing structure, instituting flexible sentences that reflect the threat posed by individual prisoners and restore their incentive to participate in rehabilitative programs. Lawmakers are reluctant to cede control over sentences, but the courts may apply pressure to do so.

Realistically, are any steps to fundamental reform possible in this legislative session?

Health-care receiver Sillen has already floated one specific idea: substituting new prison hospitals for the two prisons the governor wants to build. A knowledgeable source suggested that one hospital could be devoted to medical care and another to mental health care, both of which will probably be ordered by the courts in any case.

Such a deal would be a help in the long run only with ironclad guarantees that the new facilities won't experience the kind of "function creep" that has turned other "medical facilities" into general purpose prisons -- and with continued court oversight to ensure compliance.

The first step to any larger-scale reform will be the recognition that, in fighting crime, prisons are a sign of failure, not success. Decades ago, they became the state's default solution for ingrained social problems. The IOUs have now come due.

Peter Y. Sussman, a longtime local journalist, co-wrote, "Committing Journalism" with prison writer Dannie M. Martin and is the editor of the upcoming "Decca: The Letters of Jessica Mitford." Sussman also was co-author of "Three Strikes: The Unintended Victims," a 1994 foundation-funded report. He wrote this article for Perspective.

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