The last quarter century has seen a more than fivefold increase in the state’s prison population. Reforms are under way, but they won’t do much good if we fail to amend three-strikes laws and minimum drug-sentencing codes.
Last week, Rod Hickman, head of California’s sprawling, and troubled, correctional system, stunned his colleagues by announcing that he intended to submit his resignation to the governor. Hickman’s decision was extraordinary not, per se, because he was leaving the correctional scene, but because of his rationale.
Mandated by Governor Arnold Schwarzenegger to reform what was widely acknowledged to be a “broken” prison system, Director Hickman was supposed to rein in brutality, to bring the role of rehabilitation back to the fore and to make flexible a bureaucracy notorious for its rigidity. His resignation was an acknowledgement that the political will simply wasn’t there to successfully reform the Youth and Adult Correctional Agency (YACA), the coordinating body in charge of juvenile and adult corrections as well as probation and parole services in the state.
For two years now, Hickman and his team of reformers have been trying to fix the “culture” of a system responsible for housing—and, hopefully, rehabilitating— somewhere in the region of 167,000 Californians sentenced to time behind bars for their criminal activities. The reformers’ efforts were intended to counter the ideas, promoted by posturing political leaders over two-plus decades, that growth in the prison system was good in and of itself; that building more prisons and making harsher the conditions inside those prisons, that incarcerating more teenagers and sending back to prison more parolees on violations of their parole, were the be-all-and-end-all of criminal justice; and, perhaps most importantly, that “rehabilitation” implied being soft on criminals in an era when the public wanted “hard” policies.
The reformers have been working in often difficult conditions, trying to navigate waters roiled by contradictory messages sent out by an electorate fearful of crime yet hostile to business-as-usual approaches. Add to that a governor and legislators looking to reform the system while still preserving their macho criminal-justice credentials, despite plenty of evidence that old “tough on crime” policies such as the state’s “three strikes, and you’re out” law were simply gumming up the works of the bloated system.
At the end of the day, perhaps, the odds against Hickman succeeding were simply too long. He had been trying to change how “success” within corrections was measured, against a political backdrop in which many politicians were still arguing that rehabilitation was something akin to a dirty word.
In fact, efforts to reform the existing system beg a key question: Why go to great lengths to humanize a system that continues to lock up, often for decades at a stretch, tens of thousands of relatively low-end offenders under three-strikes laws and mandatory-minimum drug-sentencing codes?
Clearly, reform is needed. But, absent a good, hard look at the sentencing policies themselves—at the practices that have led to a more than fivefold increase in the state’s prison population in a quarter century—reform could, paradoxically, simply make a bad system more palatable. And, in the long run, this helps neither the many thousands of prisoners sentenced to long periods behind bars for low-end crimes nor the taxpayers who are footing the bills for keeping these men and women incarcerated.
Macho criminal-justice credentials
While some political figures have begun to recognize the seriousness of California’s over-incarceration problem and the futility of policies that have the effect of endlessly cycling offenders between prison and parole, amazingly, some are proposing making the system even larger.
“So, you say that there are too many people in jail. Well, I ask you, who do you want to let out?” state Senator Chuck Poochigian asked of his opponents, before an enthusiastic gathering of Republican students in a lecture room at UC Davis in late January.
Two months earlier, a year after California’s voters voted down Proposition 66 and kept undiluted the state’s “three strikes” law, Poochigian had begun arguing that the law wasn’t tough enough.
Three strikes allows for a 25-years-to-life sentence to be imposed on anybody with two serious crimes in his or her past convicted of any third felony. Not included in the list of qualifying “serious” offenses is car theft. In a series of opinion pieces and speeches before campus audiences, the Fresno Republican, serving as chair of the Public Safety Committee and running hard for his party’s nomination to be the state’s next attorney general, argued that the best way to deal with the Central Valley’s epidemic levels of car theft was to redefine the crime as serious and violent. Such a technical maneuver would allow car-theft convictions to count as first- and second-strike offenses in the eyes of the law and would show, he argued, that California was finally getting tough about a crime long allotted a low priority by law enforcement and legislators alike.
“Bad guys lured by light penalties for auto theft,” ran the somewhat lurid headline of a Poochigian op-ed in the November 8 issue of The Modesto Bee.
The politician wrote: “In 1994, the ‘three strikes’ initiative designated burglary as a ‘strike,’ meaning it could carry a sentence of 25 years to life. Car theft is not a strike. The bad guys noticed. Since 1999, criminals have made vehicle theft the fastest growing felony reported in the California Crime Index. In 2003, car thefts surpassed burglaries for the first time in the 52 years that statistics had been kept.”
None of this should be a surprise. Poochigian rose up the Republican ranks during the Deukmejian and Wilson governorships, during a time when a surefire route to political success was to out-tough one’s opponents on the issue of crime and punishment.
Poochigian appears to have taken these lessons to heart. He was elected to the state Assembly in 1994—shortly after fellow Fresno resident Mike Reynolds had succeeded in getting voters to back the three-strikes ballot initiative—and four years later, he became a senator for the 14th district. In the years since then, he has made a name for himself as a hardworking, glad-handing senator.
He also has established a solid reputation as an across-the-board conservative. Poochigian has steadfastly opposed raising California’s minimum wage; voted against expanded environmental protections and increased access to health-insurance programs; and curried the favor of the National Rifle Association. And, through continuously touting tough-on-crime measures, he got himself selected in 2000 as Outstanding Senator by the California State Sheriff’s Association.
In his capacity as chair of the Public Safety Committee, the 56-year-old Poochigian has argued for stronger sanctions against gang members, for an expansion of the network of local jails in California and for the hiring of more law-enforcement personnel throughout the state. At the same time, he has looked to block progressive changes to the state’s method of dealing with drug offenders, vocally opposing Proposition 36 and other attempts to divert low-end offenders into non-prison environments. In 2002, the Drug Policy Forum of California awarded the senator a grade F for his approach to drugs.
Despite repeated requests for interviews, made to both his Sacramento and his Fresno offices, Poochigian did not make himself available for comments during the reporting of this article. But it seems clear that, in the months since he began floating the notion of expanding three strikes, Poochigian—his nomination as a Republican candidate in the attorney general’s race virtually assured by a series of high-profile endorsements, and his need to win over conservative primary voters thus reduced—has gone notably cold on the issue. His staff asserts, somewhat improbably, that in fact he never formally proposed changing the law. Talk of a November 2006 ballot initiative to expand three strikes has died down, although conservative bloggers in the region are still touting this idea; Poochigian himself has stopped stumping for his pet cause, likely fearing he would be painted as an extremist in an election year in which he needs to win over moderates if he is to stand a chance of becoming the next attorney general.
Yet, the op-eds and the speeches about toughening up three strikes are now part of the public record. And should Poochigian end up in a scrap for his political life at some point down the road, he can, like his onetime mentor Pete Wilson, always trot out the old canard that he’s been tougher on crime than his opponents and has the track record to prove it.
The guts to limit three strikes
Four hundred miles south of the state capital, Los Angeles District Attorney Steve Cooley is busy arguing something altogether different from the ideas floated by the chair of the Public Safety Committee. Yes, Cooley agrees, car theft is a serious crime and arguably should be dealt with in a harsher manner than is currently the case. So, too, says Cooley, is another of Poochigian’s bugbears: identity theft. But expanding the three-strikes net to include damaging crimes such as these is not the answer.
In fact, Cooley won election in 2000 at least in part because L.A.’s electorate was disillusioned with the catchall three-strikes prosecutions engaged in by his predecessor, Gil Garcetti. Shortly after winning office, Cooley issued a special directive that limited third-strike prosecutions in his jurisdiction to cases in which the third offense was serious or violent, thus hoping to end a string of embarrassments in which L.A. prosecutors had put people in prison for the rest of their lives for shoplifting, stealing pizza slices, forging checks or possessing minuscule amounts of drugs.
Now, in the wake of Proposition 66’s defeat, Cooley is looking to rein in three strikes, limiting the application of the 25-years-to-life sentences to those convicted of violent third strikes or to defendants whose previous crimes were heinous enough to have made them eligible for either the death penalty or a life sentence.
Cooley, who is pushing for a ballot initiative this coming November that would limit three-strikes prosecutions statewide in a similar way to that he set in place in Los Angeles, argues that handing out third-strike penalties for lower-end crimes is not only disproportionate, but, because of the costs of incarcerating two-bit offenders for decades in high-security prisons, also is scaring the Legislature away from defining new crimes as felonies. “You have a skittish legislature,” the district attorney explained. “Not willing to pass appropriate laws making certain conduct felonious—such as the possession of kiddie porn. This is the price the public is paying because of a general legislative sense they don’t want any more felonies serving as the basis for 25-years-to-life sentences.”
As a result, crimes that need to be taken seriously are being ignored, and criminals who are a genuine threat to public safety and to the well-being of others are getting off with no prison time because of the all-or-nothing equation built into three strikes. At the same time, large numbers of relatively minor offenders are slated to spend the rest of their lives behind bars because they already have been convicted under the three-strikes provision. It is the quintessence of a dysfunctional system.
“My proposal,” said Cooley, “would eliminate many not serious, not violent felonies from being predicate felonies for 25-years-to-life and would hopefully assuage that [legislative] skittishness. We’ll eliminate an impediment for the Legislature to not make certain offenses felonies.” It also, he asserts, would allow the courts to tackle the increasing problems of car theft and identity theft by letting judges impose longer sentences on such offenders without the convictions counting toward a subsequent third-strike penalty. “The solution to grand theft auto is not to make it a strike.” So, what might work to reduce this problem? “Putting more resources into the investigation and apprehension of auto thieves might be more effective, increasing the certainty of being caught.”
What it takes to change a system
If the three-strikes clash were occurring in isolation from other changes within the state’s vast criminal-justice infrastructure, it might be possible to ignore it, to brush it off as old-hat. But, in fact, the battle for the future of three strikes, embodied by Cooley wanting to restrict its scope and Poochigian and his supporters wanting to expand its application, is taking place against a backdrop of startling bureaucratic overhauls in the state’s prison, parole and juvenile systems. It’s also happening amid raucous behind-the-scenes arguments about the prison system’s orientation, or, more broadly, about the purpose of incarceration in a democratic society.
Hickman’s resignation—and the implication that all the good work may yet come to naught—has helped push these issues into the public eye.
In fact, for two years now, the central question in California’s correctional circles has been how to make a “broken” system—one primed for violence because of the number of prisoners who feel they have little to lose by acting out—function better.
California has approximately 167,000 prisoners. This is slightly smaller than the Federal Bureau of Prisons’ population, roughly on a par with the prison population of Texas and orders of magnitude larger than the incarcerated population of the other 48 states. Yet, too often the prisons seem little more than flophouses for the given-up-on and the hopeless. The state returns parolees to prison more frequently than does any other state, with approximately 70,000 prison admissions per year for parole violations, suggesting correctional facilities are utterly failing to convert their residents into law-abiding citizens.
In 2004, Governor Schwarzenegger and Director Hickman began a concerted effort to change the way in which the huge system—with an annual budget of more than $5 billion—was managed. Their objective was to create a prison system that actually rehabilitated its occupants, rather than simply warehousing them, returning them to the community and then providing them with a cell again when they screwed up.
To do this, Hickman and Schwarzenegger knew they would have to tackle the prison-guards union, which had become a central, and deeply conservative, player in the state’s political process. They also would have to grapple with a correctional culture in which scandals were, and continue to be, a dime a dozen: After allegations of abuse and a rash of self-mutilations, suicides and murders, the Supermax at Pelican Bay (one of a handful of super-maximum-security institutions opened up from the late 1980s onward) was ordered by a judge to remove seriously mentally ill inmates into a special unit; and in Corcoran, guards were found to have organized gladiatorial combats between members of rival prison gangs and then to have shot the fighters apart on the prison yard. Most recently, the youth authority’s institutions have come under the spotlight because of a series of wantonly violent guard responses against troubled teenagers, the system’s health-care services have been ruled unconstitutional by a federal court, and the parole system has been denounced by the courts for huge backlogs in reviewing prisoners’ parole applications.
Put bluntly, by the early part of the century, California’s correctional system had devolved into an overpopulated modern-day bedlam.
“We had to reorganize to get to the cultural change, to get to the results we wanted,” Hickman said, raising his large hands for emphasis, as we talked at the end of a day of hearings held by the national Commission on Safety and Abuse in America’s Prisons, at Loyola Marymount University in Los Angeles. It was two weeks before his stunning resignation announcement.
In a black pinstriped suit, a pressed white shirt and a purple tie, Hickman looked every bit the ambitious corporate executive. Why the need for cultural change? Well, the director explained in a deadpan tone, in 2004 the reformers were faced with “the code of silence, the potential indictment of a former director, issues in regards to use of force, budgeting problems, ethical and fiscal issues that existed.” A commission headed by former Governor Deukmejian had come up with no fewer than 239 recommendations for reforming the system, chief among which was to restructure the bureaucracy and to bring back the notion of basing correctional decisions upon solid, well-researched evidence.
“When people say we’ve failed,” Hickman argued, “the failure is a question of expectation. California had high recidivism rates, but it was never designed to rehabilitate. It was designed to incarcerate. There’s a huge number of prisoners in California that do a short amount of time. They cycle through, and we have to break that cycle.” In other words, the state was good at keeping people in prison and fairly useless at helping them turn their lives around.
At Schwarzenegger’s urging, in 2005 the Department of Corrections was renamed the Department of Corrections and Rehabilitation—a symbolic change important in a state whose leadership earlier had declared rehabilitation no longer one of the prison system’s functions. To back up this change, a multimillion-dollar research wing, headed by parole and re-entry specialist Joan Petersilia of the University of California, Irvine, was established to study which programs worked to lower recidivism rates. Sometime in the next year, pilot programs will kick in at a few select institutions, designed to test some of the new methods identified by Petersilia and her team as likely to be useful.
Also, funding for the state inspector general’s office was reformulated. In the past, the office was given a fixed budget, regardless of how few or how many allegations of abuse it investigated. Clearly, this created a disincentive for its officials to go out of their way to look into potential problems. Under the new formula, in contrast, more money is channeled the office’s way the more cases of possible abuse within state institutions it decides to investigate, reversing the incentive structure. “The inspector general’s office has a golden key,” Matthew Cate, Schwarzenegger’s hire for the job, told the Commission on Safety and Abuse in America’s Prisons.
Cate, a large man with a chiseled jaw and short, gelled-back brown hair, told the blue-ribbon panel that he had been appointed, in the wake of years of prison-abuse scandals, to “rigorously audit and investigate, and to be transparent in everything we did. We can go into any prison at any time and ask to speak to any inmate and ask for all documents.” And, he continued combatively, “if my people go to all the troubles to bring a problem to light, then you damn well better fix it, or I’m going to embarrass you.”
In an attempt to cement the cultural changes within California corrections, a new director, then-San Quentin Warden Jeanne Woodford, was tapped to head the state’s prison system. “Even in our low-end prisons,” Woodford stated when I interviewed her in the summer of 2005 for a book that I was researching, “we’ve had these sorts of roving riots. We still have problems with street-gang issues in the prisons. My overall philosophy is these inmates return to their communities—95 percent will parole. It’s getting those communities involved in their prison and re-entry experiences.”
What is needed, explained Woodford—who, following Hickman’s departure, has been appointed interim director of YACA—is better re-entry planning so that prisoners are better prepared for the free world; better aftercare for ex-inmates with drug problems; and an increased reliance on community volunteers coming into prisons to help educate, counsel and treat angry, illiterate, addicted prisoners. “We will be held accountable for our ability to appropriately transition people home. People will measure our success by our ability to lower the recidivism rate. We want to begin preparing our inmates for parole the minute they come in our door.”
Finally, to complete the picture, Alan Glassman, a top-tier management consultant from California State University, Northridge, was signed on to put together a comprehensive strategy to reform the entire correctional bureaucracy.
Glassman, a feisty man with a sparkle in his eyes, salt-and-pepper hair and a striking resemblance to the comic actor Mel Brooks, hired a team of outside experts and, over the course of 18 months, from early 2004 through late 2005, fundamentally redesigned the management of California’s correctional system. Glassman’s team looked to create structures that would provide incentives for inmates to enroll in education, drug treatment and vocational-training programs and that would force prison wardens and their staffs to take such programming seriously.
There was, Glassman explained over a large sandwich in a San Fernando Valley deli, an “acceptance [by top correctional personnel] that there was a burning platform and that their job wasn’t to put out the fire, but to build a new platform. My only words for it, we had a lot of swirl. It’s very rare. You don’t [often] get the coming together of new leadership committed to transformational change with the support of a new governor for that change and a promise by the governor to blow up the boxes.” “We can no longer do business the way we did it in the past,” Glassman recalled YACA chief Hickman telling a meeting of senior prison managers in 2004.
But, as Hickman has now realized, blowing up boxes can be a lot tougher than it sounds.
167,000 and counting
For the first time in a quarter century, California has a governor who seems genuinely committed to restoring the good name of corrections in the state; to reining in the California Correctional Peace Officers Association; and to making a good-faith effort to improve conditions in a system that has become infamous for abuse scandals, cronyism and rampant violence.
Whether the reforms will amount to anything, however, won’t be known for many years. “In my world, there are several areas of change you play with all the time, culture being a major one,” Glassman explained. “Estimates are it takes seven to 12 years to change the culture of a major organization.” In the meantime, as the recent federal court decision to place the prison system’s dysfunctional health-care services under the control of the courts indicates, and as Hickman’s departure confirms, the reformers have a long row to hoe.
Succeed or fail, though, all of this effort doesn’t answer a fundamental question: Why are we spending a ton of money to humanize a system that continues to lock up, often for decades at a stretch, low-end offenders who could be served best by either short prison sentences or structured alternatives to incarceration, such as community service or mandated drug treatment? In fact, do the exact conditions of confinement really matter, at the end of the day, to a three-striker serving life on a low-end drug crime, when it is the absurdity of the sentence itself that is the fundamental injustice?
Take Dan Johnson, for example. Johnson was a trained sheet-metal worker and also a longtime cocaine addict. In the 1970s and 1980s, he was arrested numerous times on relatively minor drug charges, and in the late 1980s, he was convicted on several robbery charges, robberies of gas stations committed to fund his out-of-control drug use. Ironically, he spent only a couple of years in prison for the robberies—a spree that easily could have spiraled into violence against the victims and that only ended when one of the gas-station attendants shot Johnson through the neck. Yet, years later, when he was arrested in San Juan Capistrano with a small quantity of cocaine and paraphernalia suggesting he was intending to sell the drugs, it was the minor drug charge that proved the catalyst for a three-strikes sentence.
In 1994, Johnson was one of the first Orange County residents convicted under the new three-strikes law. He was found guilty on three separate drug charges and was sentenced to 75-years-to-life behind bars (a sentence later reduced to a mere 28-years-to-life).
Does it matter how Dan Johnson, and others like him, are incarcerated? Well, on one level, yes. Obviously, in addition to the simple human-rights arguments in favor of non-abusive living environments, it’s in the state’s best interests to keep the prison conditions reasonable so as to minimize the risk of disgruntled inmates rioting and to reduce the risk of endless prisoner lawsuits. But the bigger story is that a court has told a person such as Johnson that, because the people have spoken in their continued support for three strikes, he likely will never experience freedom again.
Moreover, beyond the thousands of three-strikes convicts, because of the ways in which the war on drugs and the general toughening up of sentencing laws have played out in recent years, tens of thousands of Californians continue to be incarcerated for years and decades at a stretch for crimes that, in another time and another place, would not have been dealt with through prolonged imprisonment. A generation ago—after nearly a century during which the nation’s incarceration rate, and that of individual states, had stayed roughly constant, at somewhere between 110 and 150 prisoners per 100,000 residents—California’s prisons housed fewer than 30,000 inmates. Today almost six times that number of Californians live behind bars.
Were Poochigian’s proposal to take root, and were California’s prisons to see an influx of three-strikes inmates destined to spend the rest of their lives behind bars for stealing cars, that question would become even more pertinent. Who benefits when the wrong people are permanently removed from free society? How does incarcerating a 19-year-old joy rider into the latter part of the 21st century make California a better or, indeed, safer place? And how do taxpayers gain when vast efforts are then expended on mitigating these people’s unreasonable prison sentences by, at great cost, improving the quality of their incarceration experiences by providing them with better health care, more responsive guards and a more flexible bureaucracy governing the prisons within which they are held?
The bureaucratic reforms now taking place in California’s correctional system are long overdue and, despite Hickman’s pessimistic departure from the scene, quite possibly will succeed in making a brutal culture marginally less brutal and significantly more empathetic. Yet, at the end of the day, they are only one part of the equation. The other, finding ways to scale back the size of California’s prison population to more historically reasonable proportions—as measured by earlier incarceration trends in the state and the country as a whole and also by comparing America’s incarceration rate to that of other industrial democracies—has been largely ignored by the governor and Legislature alike.
And, if the proposals floated by supporters of Poochigian, a man with hopes of becoming the state’s top legal officer, take off in opposition to the three-strikes reforms touted by Steve Cooley, it will become even harder to halt the seemingly endless growth in California’s gulag archipelago.