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California Journal
Waiting for Judgment Day

DATE: May, 2004
John Howard

Thieves, killers and con artists were shackled aboard the Waban, a sinister, 268-ton jail boat floating in San Francisco Bay in 1850. They had a job to do: build California's first prison on land at Point San Quentin, a grim spit surrounded by marshes, hills and shark-teeming water. After months of escapes, violence and disease, the deed was done.

Thus was born California's correctional system.

After 152 years, 32 more prisons, 37 new camps and an unprecedented expansion unlike anywhere else in the world, the $5.7 billion-a-year, 161,000-inmate system remains violent, overcrowded and perilously close to being placed under federal control. It has evolved into the third-largest penal system in the world, eclipsed only by China and the United States' sprawling network of state and federal prisons.

California has the nation's largest Death Row, 637 inmates, larger than 25 states combined and more than 20 times the number of condemned federal prisoners. Including parolees, some 300,000 people fall under the Department of Correction's jurisdiction.

The system is vast, powerful, amorphous and autonomous, and grinds along like a huge glacier. Insiders say its real power resides in wardens and union cells scattered across the state, not in the administrative headquarters at 15th and S streets in downtown Sacramento.

"It's the massive size of the system that makes it so difficult to turn around," noted Rose Braz, a director of Critical Resistance, an inmate advocacy and prison reform group.

Others agree.

"There is no center to the behemoth called the Department of Corrections," added Steve White, the state's former Inspector General. Appearing before a recent Senate committee, White was glum as he wondered whether the flawed system could ever be overhauled. "Heads will roll, butts will get kicked and three months later, when you're not looking, it will be back to the way it was. I know this to a certainty."

But there's a new governor with no political ties to the prison industry, and a new corrections chief urging reforms, including restoring rehabilitation to the state's penal mission. And there are court decisions.

All are sending signals that changes loom for a system that has reached critical mass. Although they are faint and mixed, the signals are there.

"In the past 20 years, this is the first time I've felt there was a real window of opportunity for change," said Dan Macallair of the Center for Juvenile and Criminal Justice at San Francisco State University, a frequent critic of California's correctional system.

"The real difference may be cosmetic now. But if there is a new parole policy and the governor is restoring authority back to the [parole] board, that would be a change. Probably the biggest change is that the Corrections Department is inclined to settle the class-action lawsuits," said Charles Carbone, an attorney with California Prison Focus, an inmate rights group.

But it's difficult to be optimistic about fixing California's prisons.

The starvation death at Corcoran of a depressed 72-year-old inmate and the case of a fellow prisoner who bled to death on Super Bowl Sunday are under investigation. So is the April 2002 riot at Folsom Prison, in which 25 prisoners were injured and a guard who tried to break up the 90-second brawl was permanently disabled. Another officer, who complained that prison officials subsequently engaged in a cover-up, killed himself during the follow-up investigation after alleging that prison authorities retaliated against him.

The Folsom riot and its aftermath triggered a new round of legislative hearings into prison operations and a scrambling of activity from the administration. Governor Arnold Schwarzenegger abolished the independent office of the Inspector General, then reinstated it later under pressure -- but without the independence. He also fired acting Inspector General John Chen on the eve of the riot hearings.

Schwarzenegger then named a commission to review prison problems and recommend a fix. The panel is headed by former Republican Governor George Deukmejian, who critics immediately noted had pushed for tougher sentencing laws and expanded prisons in the 1980s.

Problems on top of problems

Historically, Corrections had twin goals: incarceration and rehabilitation. But in the late 1970s, during the administration of Democrat Jerry Brown, rehabilitation was dropped from the department's mission statement. Over the years, that change, plus the addition of determinate-sentencing and three-strikes laws, has had a profound impact on the department and the inmates it serves. With scant attention to rehabilitation, two-thirds of released inmates are back behind bars within 18 months, double the national average.

Meanwhile, the number of inmates has skyrocketed seven-fold since 1980 but now is leveling off. The number of prisons has nearly tripled and more construction is envisioned despite a budget shortage -- including a proposed $200 million Death Row renovation. A new $335 million, 5,000-bed prison is under construction in Delano north of Bakersfield.

Clogging the system are parole violators and those imprisoned for non-violent crimes involving property or drugs - nearly two out of every three inmates. Ultimately, nine out of 10 prisoners are released from custody and put back on the streets - rehabilitated or not. Despite the spiraling incarceration, the proportion of violent crimes -621 per 100,000 inhabitants -- is about the same as in 1975, before the prison boom.

And then, there are those who watch over the inmates. A scathing January report by a monitor for U.S. District Judge Thelton Henderson said that prison administrators routinely bow to the guards' union, the 31,000-member California Correctional Peace Officers Association, in deciding such fundamental issues as disciplines and transfers. The report said officers followed a "code of silence" to thwart investigations, urged contempt charges against the state's former corrections director and said the federal government should step in and manage the flawed system. Henderson said he was considering it.

Schwarzenegger has responded by saying his top priority is changing the ethics and culture of prisons.

The California Youth Authority, which takes in juvenile offenders and adults up to age 25, drew fire as well with the release of a videotape showing guards beating two teenage wards on January 20 in Stockton, and with the disclosure that the CYA put recalcitrant youths in steel outdoor cages. Senate investigators, already working overtime looking into the prisons, began eyeing the CYA, the focus of court orders to put its house in order. The CYA houses 4,200 young inmates in nine institutions and four camps.

The result: California prisons are drawing the most public attention in a decade.

"Folks will continue to sporadically pay attention to prisons, but unfortunately the only time they do is when there are allegations of abuse, escapes or riots," said CCPOA Vice President Lance Corcoran.

Shaping the culture

For decades, California's prisons have been shaped by politicians who have built careers by pushing punishment legislation, by the CCPOA's swelling political clout, by fundamental changes in sentencing laws and by the public's gut feeling that convicts get what they deserve.

With fighting crime a top priority in the 1970s and 1980s, the public approved financing of massive prison construction. Within two decades, California built 20 more prisons, more than in its first 130 years.

A change in sentencing laws signed by Governor Jerry Brown went into effect in 1978. Since early in the century, people convicted of a crime were sentenced to an indeterminate range of time, such as two to 10 years for a burglary, or five years to life for armed robbery. The new determinate-sentencing law ordered fixed terms and limited the discretion of judges and parole officials. Reformers said it would prevent sentence discrimination. But critics -- who now include Brown -- said it removed the incentives for inmates to behave behind bars.

"There was no empirical evidence to justify the change, it was based on mood," said Brown, now mayor of Oakland. "The determinate sentence means you treat different people equally, those who should be locked up for a short time and others who should be locked up for a long time. When you don't distinguish between the two cases, you eventually increase the sentences to keep them longer. That's the fatal flaw of determinate sentencing. You keep people who could return to society too long, and you don't incarcerate long enough the people who are entirely unsuitable for society."

Brown said the law needs "radical surgery."

As politicians boosted penalties for crimes, adding longer sentences and harsher penalties, the inmate population grew 23 times the pace of the state's population growth.

Schwarzenegger eschews the campaign cash of the CCPOA, which wielded enormous political influence on former Republican governors Deukmejian and Pete Wilson, and on former Democratic Governor Gray Davis -- all of whom ardently supported the prisons' expansion. All received large campaign donations from CCPOA. Indeed, Wilson in 1996 received the largest single campaign donation in California history up to that time -- $420,000 -- from the CCPOA, while Davis received an overall total of some $3 million.

Critics of the correctional system who agree on little else believe the CCPOA is too powerful, that it influences correctional policy, prison administration and staff discipline. "They run the show. They are the Department of Corrections. Nothing gets done without the acquiescence and approval of CCPOA," Carbone said.

By one estimate, perhaps a third of the CCPOA's $22 million in annual dues finances political activities, and the money goes to members of both major parties, the statewide parties themselves, lobbyists, the leaders in both houses of the Legislature and independent expenditure committees. The largesse extends to members of the Senate Rules Committee, who approve the governor's appointments of wardens. The guards' union also is one of the biggest advertisers in California Journal, read by the state's influential policymakers.

John Hagar, Judge Henderson's special monitor, said even high-up Corrections Department officials caved to pressure from the CCPOA.

"Yes, we are big and we do participate in the political process," said the CCPOA's Corcoran. "If you tell the story long enough, you'll see that it's been overblown. You can't read any story, any editorial without seeing the 'politically powerful CCPOA.' They [correctional officers] are not obstructionists."

Adding to the uproar is a $251,000 campaign contribution from the correctional officers to Davis shortly after he signed a lucrative, five-year contract giving the guards a 37 percent pay spike, plus favorable medical and overtime benefits. Schwarzenegger wants to rewrite the agreement. Thus far, the CCPOA is skeptical.

"If our last deal didn't stick, how is this deal going to stick? They can't answer that. We have a formula that ties us to the Highway Patrol. How would this [renegotiation] affect our formula?" Corcoran said.

Restoring "rehab"

Schwarzenegger's newly appointed prisons director is Jeanne Woodford, who rose through the ranks to become warden of San Quentin Prison. She has publicly demanded that the term "rehabilitation" be restored to the official mission of California's prisons for the first time in 28 years. The efforts by Woodford, who bolstered her San Quentin staff with some 3,000 community volunteers who taught language and job skills to inmates, are being watched closely by national penologists.

"Rehabilitation is a primary mission of the Department of Corrections," the outspoken Woodford told the public affairs television program, "California Connected." "If all you expect of them is to do their time, than you have not gotten much for your money."

Former Assembly Republican Leader Pat Nolan of Glendale, a rising GOP power until he got snagged in the FBI's undercover corruption investigation of the Capitol in the 1980s, agreed with Woodford. He argues that without some form of rehabilitation, prisoners cannot function when released from custody.

As a lawmaker, Nolan pushed through tough-on-crime legislation, then wound up serving two years in federal prison. He now works as an executive in Prison Fellowship, a faith-based national prison reform group founded by Charles Colson, a former White House adviser who also went to federal prison, for Watergate-related crimes. Last month, President George W. Bush appointed Nolan to a national advisory group to craft recommendations on preventing prison rape.

"I remember the day I was released, some friends took me over to the 4th Street Grill [in Sacramento]," Nolan said. "Everybody ordered, but when it got around to me, I couldn't decide. I sat there with a menu in my hand and there were too many choices. It overwhelmed me. I was only in for two years, and I had a support group of friends and family. Think of the guy with none of that, confronted by freedom."

Persuading state lawmakers -- many facing re-election and fearful of being accused of coddling criminals -- to replace the word "rehabilitation" in the state's penal code won't be easy. A bill by Assemblyman Paul Koretz (D-West Hollywood) to do just that stalled in the Legislature and appears dead for the year unless Schwarzenegger weighs in with his political star power.

Schwarzenegger forced budget cuts and successfully won voter approval in March to borrow $15 billion to cover part of the state's red ink. Can he win another victory on prisons, this time for Woodford?

"Certainly, but it definitely will take leadership from the top. Without his full support behind her, it would do her in," said Assemblyman Mark Leno (D-San Francisco) who chairs the Assembly Public Safety Committee. "There is a need for political leadership and political vision coming from the executive office, and quite frankly we haven't had that for the past two decades. [Schwarzenegger] wants to be fiscally responsible. He also shows excitement about what good policy can produce." Leno said he also expects sentencing reforms to come before lawmakers, but predicted a bruising political fight.

Schwarzenegger surprised observers by allowing freedom for several lifer inmates authorized for release by the nine-member Board of Prison Terms. State law permits the governor to override the parole board but Davis, fearful of appearing soft on crime, blocked release in all but eight of 294 cases he considered. But Schwarzenegger, a scant four weeks after being elected, considered the release of 10 inmates and approved freedom for four, including Rosario Munoz, who killed her husband's lover in 1987. Davis had twice turned down Munoz's parole. Schwarzenegger's action sent ripples through the correctional community.

Then, in December, Schwarzenegger authorized a settlement in a class-action court challenge known as the Valdivia case, which governs the way Corrections handles parole violators. The decision assures parole violators of access to an attorney during parole-revocation hearings, shortens the time between hearings and sets up of "intermediate sanctions" that peg the length of a violator's sentence to the severity of the violation. The changes had long been urged by the Little Hoover Commission.

In the end, reforms in the prison will stem from public pressure, according to former Governor Brown.

"For most people who live in safe communities, this isn't a problem. But there is great concern about prison and parolees in many communities where criminals can operate with virtual impunity," said Brown. "There will be change, but it will take quite awhile. It will take a lot of public awareness about the true state of affairs."

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