California Majority Report
October 28, 2008

By Donald Lathbury

Do states’ rights trump prisoners’ rights? That’s the question in an emerging showdown that pits Governor Arnold Schwarzenegger and the state of California against J. Clark Kelso and a federal court order to construct seven new prison hospitals. Here’s the San Francisco Chronicle’s Bob Egelko with more:

“The lawyer representing California in a lawsuit over prison health care said Monday that state officials aren’t ready to comply with a federal judge’s order to turn over $250 million for new hospitals for inmates, despite the possibility of a contempt-of-court order against Gov. Arnold Schwarzenegger. …

“This court has no authority to order construction of prisons,” [Deputy Attorney General Daniel] Powell told Henderson. He said state officials must review the construction plans, decide whether they comply with legal restrictions and seek specific approval from the Legislature.”

This is bad. Earlier in the year, Senate Republicans refused to budge on funding for the new prison health facility construction, preferring instead to let prisoners needlessly die because of unconstitutional health standards at the rate of about one prisoner per week.

The federal receiver is prepared to fine the state $2 million a day until we comply, but Governor Schwarzenegger and the state’s lawyers are apparently convinced that they can stand up to the federal court order.

Whatever the outcome, the chickens have come home to roost in a state that has been ridiculously irresponsible in public safety matters — and both political parties are complicit in this situation. Our prisons house roughly 172,000 prisons yet were designed to hold 100,000. That number is expected to exceed 190,000 in four years. This came about through decades of tough-on-crime legislation and ballot propositions that, far from making us safe, simply flooded our prisons with non-violent prisoners, putting them in environments that are breeding grounds for gang activity and random acts of violence. When we stuff individuals responsible for non-violent drug and property crimes in gymnasiums where they can’t help but be exposed to a lifestyle that is far more dangerous, when they are released with inadequate post-prison services, we’ve only created hardened criminals that are a greater threat to society.

These facilities are breeding grounds for communicable diseases and injury, but while the interests that stand to profit from imprisoning more rather than less people have powerful lobbyists that can silence Democrats and Republicans, prisoners lack a powerful voice in Sacramento. So year after year, needed drug sentencing reform, rehabilitation and diversion programs, and yes, early release to reduce overcrowding is squashed. What we’re left with is overcrowded prisoners and underfunded health facilities to deal with the mess we’ve created.

California has 456 inmates for every 100,000 residents. The United States at large has five percent of the world’s population and 25 percent of the world’s prisoners. For comparison with our allies, all of which have much lower crime rates, for every 100,000 citizens, Iceland has 38 prisoners, Japan 48, Norway 59, Sweden 68, Switzerland 69, France 85, Ireland 86, Netherlands 93, Italy 95, Germany 96, Canada 102, Australia 116, Spain 126, South Korea 133, and the UK 136.

This is a national disgrace, and California is at the forefront. Incidentally, we have an opportunity to help significantly reduce our prison population in this election by supporting Proposition 5, the Nonviolent Offender Rehabilitation Act. It’s essentially an amplified version of Prop 36, and it’s supported by the California Democratic Party, National Black Police Association, League of Women Voters of California, California Nurses Association, California Society of Addiction Medicine, California State Conference of the NAACP, National Council of La Raza, California Federation of Teachers, California Council of Community Mental Health Agencies, Mental Health Association in California, California Association for Alcohol and Drug Program Administrators’ Association of California, California Church IMPACT, ACLU of Northern California, ACLU of Southern California, and the Ella Baker Center for Human Rights.

These are serious organizations on the forefront of crime reduction, addiction alleviation, and diversion programs. What you don’t see, as was noted on CMR yesterday in a post opposed to Prop 5, are people intent on running for higher office anytime soon. For anyone who regularly follows California politics, this should come as no surprise. Take the brave stand that we house too many prisoners, and you will get pounded with misleading ads and independent expenditures. There is no lobbying apparatus more powerful, which is precisely why the reforms in Prop 5 can only be achieved via the initiative process. If the political will existed, I would be opposed to Prop 5, because I’m typically reluctant to support ballot box budgeting. But this is our only outlet, and many of the people opposed have, on this issue, been part of the problem.

Four of Prop 5’s most significant opponents are Senator Dianne Feinstein, Attorney General Jerry Brown, Treasurer and former Attorney General Bill Lockyer, and former Governor Gray Davis. Each has many accomplishments to their name, and I have praised all of them at one point or another for the good work they’ve done. But on public safety they are wrong, wrong, wrong — and always have been. In 2000, each opposed Prop 36, which has led to a reduction in violent crime, despite chronic underfunding. In 2004, each opposed Prop 66, which would have reformed our draconian three strikes law.

But please, don’t make endorsements the deciding factor in your vote. Read the non-partisan Legislative Analyst’s Office report, and make up your own mind. It’s worth noting that while the Yes campaign proudly links to the non-partisan analysis, the No campaign is conspiculously silent on its existence.

I’m not going to pretend that Prop 5 is a perfect measure, but I’m convinced the status quo is much worse. Whether it passes or fails, I hope CMR reader david_t was right when he said: “Whether it wins or not, let 5 be a wake-up call to the political elite. We want better, smarter policies on drugs and prisons.”

Meanwhile, a prisoner a week will die because of insufficient medical care exasperated by runaway prison overcrowding.