California is the state of sunshine, movie stars— and Supermax prisons. Its huge incarcerated population –over 100,000 inmates-is one of the reasons the U.S. is the world largest jailer, says legal scholar and Berkeley Law Professor Jonathan Simon in a new book, Mass Incarceration on Trial: A Remarkable Court Decision and The Future of Prisons in America.”
The book examines why one of the country's most progressive states also hosts one of its harshest penal systems, in the context of the four-decade increase in the nation's incarcerated population. In a wide-ranging chat with The Crime Report's managing editor Cara Tabachnick, Simon discusses the role of corrections officers in hardening California's system, the plight of what he calls the “walking dead”—the mentally ill, how recent court decisions may change our approach to corrections.
The Crime Report: Considering that mass incarceration is a national problem, why did you focus on California?
Jonathan Simon: California is the Mississippi of mass incarceration. When people think of states that would follow the worst practices in incarceration you may think of Texas, Mississippi, or other Southern states because they have struggled with issues of segregation and racism that would crossover to how they treat their inmates. Historically California has been so progressive. It started out as the second most lenient region behind the Northeast, but then from the 1970s through the 1990s the rate swung all the way to be one of the most punitive regions. There was a 500% increase in incarceration—the biggest increase for any of the big states. The state defends itself by saying they in line with the national average of incarceration, but I say who wants to be part of the national average?
But in a way Californians are lucky, because it's a state that has bad incarceration with good lawyers. And the story couldn't be told—and the future of mass incarceration may be different—without the work of the California’s Prison Law Office, and the firm Rosen Bien, Galvan and Grunfeld, which brought so many of the game-changing prisoners' rights suit.
TCR: The California corrections system official title is “California Department of Corrections and Rehabilitation,” yet you note that the idea of rehabilitating prisoners has almost completely disappeared from the system.
JS: Governor (Arnold) Schwarzenegger actually added rehabilitation back into the title in 2004-2005. He saw that the system was in catastrophe. Putting that word back in was a clear sign that he knew things needed to change. Rehabilitation used to be a central theme of California prisons until the 1970s and the move towards determinate sentences in California. The purpose of the 1976 Determinate Sentencing Act is punishment. Rehabilitation was no longer the goal of the prison. The idea was to give criminals short and just sentences and then they would return home from prison.
But in reality that is not what happened, mass incarceration began to grow as legislatures and politicians added more punishments such as three strikes, and corrections lost their ability to parole. Long sentences replaced short sentences. It was a layer-cake effect. But by then, the idea of rehabilitation had been out of the system for so long, that corrections had stopped thinking of prisoners as human beings. The system began to treat people as a mass, instead of individuals.
TCR: Why did Supermax prisons—especially in California—grow so quickly?
JS: A core part of the growth of mass incarceration is states that have embraced the Supermax. In California it grew out of the trauma of the 1970s. Before 1969-1973 prison guards were hardly killed, but in that time period 11 guards were killed and it reset a whole way of thinking. Out of that trauma grew the correctional officers union—and the genius of that movement is that the guards were able to align themselves with victims of crime, instead of public workers.
Correctional workers started to see themselves as part of a war— at war with the people they are pledged to keep safe and rehabilitate. Even though that violence went away by 1975, this now the culture of the workers. Also correctional administrators needed a way to control the population, so the idea of the Supermax was born. They built these prisons as a way to manage the inmates as well as to protect themselves from possible violence.
TCR: The court case of Madrid v. Gomez was one the first cases to challenge the constitutionally of Super Max prisons being “cruel and unusual punishment.”
JS: I included this case because the opinion of Judge [Thelton] Henderson starts to give us a picture of the inhumanity against prisoners with mental illness. Madrid is crucial because when the judiciary started to investigate the Supermax, they found it wasn't inherently cruel or unusual; but it was devastating for (individuals) suffering from mental illness to be put in solitary—they became the “walking dead.”
Mentally ill people were sitting in solitary for years; they were warehousing them in these cells. The courts were able to find that these actions violated the Eighth Amendment and were cruel and unusual punishment. Madrid clearly did not solve the problem, but as a piece of jurisprudence it's an important step to recognize the dignity of prisoners
TCR: What do you mean by the “Walking Dead” in Supermax?
JS: California prison planners operated on the assumption that we do have lots of really dangerous criminals. The truth is, criminologists or psychiatrists don't know why they are like that or how to change them. We do know they never got over something that happened to them in childhood, but we don't know how to figure out who is going to kill your neighbor. What can we do with them? We can't just blow their brain outs. So in incarceration the feeling is 'let's contain them,' but the containment is so intense and so devoid of humanity that it's like seeing the “Walking Dead.”
TCR: You write how Coleman v. Wilson has shown that mental illness was a routine and widespread feature of the criminal justice system. How did we get here and where should we move forward?
JS: In the 1950s and 1960s most of our prisons were filled with professional criminals, mostly thieves, conmen, some violent criminals, but mostly white-collar criminals. As states started to embrace mass incarceration in the late 1970s and 1980s, they needed to fill the newly built prisons. They started to recruit drug addicts, petty criminals from poor and minority neighborhoods—many of whom suffered from mental illness. At this time our public mental health system was also abandoned. And this is the core—and the catastrophe of mass incarceration
Correction officials didn't know they were dealing with the mentally ill as new inmates streamed into the facilities and they were poorly equipped to deal with this population. They are just not capable; they don't have the staff, the beds, or the training to deal with such a specialized population. But one thing has become clear: people with recognized mental illness simply should not be in a prison setting.
TCR: Should judges should be required to routinely visit correctional institutions so they can be kept apprised of the conditions?
JS: I think that's a great idea. In Plata v. Brown our courts functioned almost as human right investigatory body. They went into these prisons and brought videos out of inhumane conditions happening in the prisons, overcrowding, bad -beds, unchecked mental illness. And with these videos they've opened a visual pathway through which the public can really confront what our nation has been doing with mass incarceration.
TCR: How can the American system learn from European correctional systems?
JS: In Europe they have the European Prison rule. The rule has three core features: individualization of the inmate; normalize the prison to make it as consistent with the community as possible, (provide equal medical care, employment rights, human rights); and be progressive—offer prisoners who obey the rules opportunities. These rules make a difference. In the United States (such an approach) could conserve the dignity of the prisoner and create a better system then we had in the past.
TCR: Where will we be in ten years?
JS: My pessimistic side worries that 2014 mass incarceration will be 1964 segregation. Change comes, but in reality a stigmatized institutions goes under ground. In theory, Plata started the dismantling of mass incarceration, but I fear what we will get is still 'mass incarceration light.' It will still exist with discredited features. Just like the idea of segregation was dismantled but in reality it still exists. It will take hundreds of federal judges to really fully dismantle the structural institution.
My optimistic side (says)there has been a turning point in many arenas. I'm hoping for a dignity cascade, in which people with strong moral convictions, look at what is right and wrong, and step forward with a better human rights framework for incarceration. In particular with lawyers and the jurisprudence, after all it took Justice Anthony Kennedy over ten years of thinking to come down on the side of Plata. It is possible to start moving towards a more moral ground. This has happened before in our history, for example with the Geneva Convention, and I am hoping that the time for (addressing) incarceration is now.
Cara Tabachnick is Managing Editor of The Crime Report. She welcomes comments from readers.