Examining the way our prisons operate is morally challenging for us because it requires us to separate our revulsion of the underlying behavior of the criminals in question from the moral standards to which we hold ourselves. Our collective failure to confront this issue, however, leaves us with more crime than we want, and more money and other social resources expended on problems that with the application of creativity, humanity, and experience could be ameliorated much more effectively. The use of fear of crime as a political football has made this application of creativity, humanity, and experience a functional impossibility.
An interesting coincidence of cases from the U.S. Supreme Court and the intermediate appeals courts in California reminds me of a lingering problem, one that is easily forgot. Criminal behavior is seemingly embedded in human nature and in civilized society. Some behaviors are so intolerable, and work such a detrimental effect on communal society, that they must be prohibited and, when engaged in despite the prohibition, punished. No serious observer of society disputes this, but the problem comes when the form of punishment is considered — along with the likelihood of (and speculations about the reasons for) recidivism.
The Eighth Amendment prohibits the imposition of cruel and unusual punishments for crimes. You can take a literalist reading of that text and say that this means a punishment can be unusual if it not cruel, or it can be cruel if it is not unusual — if forty-eight out of fifty states mandated waterboarding as a punishment for parking tickets, that might be “cruel” in the sense that the punishment is unusually terrifying and mean-spirited in light of the gravity of the offense, but given that it was common, it could hardly be said to be “unusual.” This is why I’m a textualist and not a literalist in my approach to the Constitution — you have to read the phrase “cruel and unusual” for comprehension, which is that we should treat our prisoners in reasonable and humane ways; the inhmane conditions in British prisons was one of the things the Founders recoiled against.
This does not mean, of course, that prison has to be a pleasant place and indeed prisons are not. This is true in a particular way in California, where our prisons are running at roughly double their intended capacity. The result is (among other things) thoroughly inadequate medical care. The issue of poor medical care and other appalling conditions is frequently met with a massive “ho-hum” by both the body politic and various branches of the government, including the Supreme Court. Consider, for instance, he case of Casteneda v. Hui. Francisco Casteneda illegally entered the United States from Mexico when he was 10 years old. In his early thirties, he was convicted of a drug offense and confined to a Cailfornia state prison. He was then transferred to federal custody on the charge of illegal immigration, which is when he first complained of a painful supprating lesion on his penis and a lump in his groin that interfered with urination, defecation, and sleep. He was treated with Tylenol and an extra ration of boxer shorts; his requests for a biopsy were denied as “elective.” When he was eventually released, he immediately sought medical care and was diagnosed with metastasized penile cancer, and died shortly thereafter. The Supreme Court unanimously said that his family had no cause of action for his death after what seems like obvious medical malpractice by the prison doctor.
This is how we treat our prisoners, and most people are indifferent to it. So it’s a little bit surprising to see that same Supreme Court decide that poor medical conditions in the California state prison system constitutes “cruel and unusual punishment” and requiring the transfer-out of roughly half of the prison population. Much has been made of Justice Scalia’s lurid description of the horrible and terrifying crime wave that will result from the majority’s decision in Brown v. Plata, but Scalia was dissenting and the majority ordered that the prisoners be either paroled, transferred to other facilities, or otherwise moved out of the state prison system.
The holding in Brown v. Plata does not speicifically demand that the prisoners be released, only that they be removed from the prison system. There is, allegedly, some capacity in county jails for holding prisoners, so some will be transferred there. It is possible to contract with other prison systems to take some overflow, and no Constitutional impediment to transferring a California state prisoner to an Arizona or Texas state prison so long as the duration of incarceration is not extended. But there is of course no money to pay for such a thing, no other state will take our prisoners without being compensated for it.
Of course, the punishment of parolees does not end when their time of confinement is completed. As we know, parolees have substantially diminished rights as compared to those of citizens at their liberty. Their rights to travel, to own weapons or consume alcohol, their right to associate with people of their choosing, their rights to refuse to submit to warrantless searches without probable cause by the police, and many other rights can be and are all substantially restricted. And if their underlying crime was a sex offense, their ability to choose their own home is restricted as well. In last week’s case of In Re Pham, the practical effects of Jessica’s Law — no registered sex offender may live within 2,000 yards (that’s a little bit more than one mile) of a school, a park, or any other place that children congregate — were unsuccessfully compared to “banishment,” which is identified as a form of cruel and unusual punishment.
Since it is only “difficult” to find a place to live that is not 2,000 yards from a school, park, or other congegration place for children, and since Jessica’s law does not prohibit a registered sex offender to traveling to a place within the “protected zone” to engage in commercial transactions or to seek employment, Jessica’s Law is not a “banishment” of the registered sex offender, said the Pham Court. Never mind that the only places in Los Angeles (a city of over three million people) that are not within 2,000 yards of a place that children congregate are the undersides of the bridges over the Los Angeles River, a refrigerator box at the harbor, and a bush in Panorama City.
Which leaves us in an interesting position. We lack the capacity in our prisons to handle all of our prisoners. We lack the ability to adequately rehabilitate prisoners so as to prevent recidivism and indeed many schools of thought are that prisons are in fact finishing schools for would-be recidivists due to the fact that they confine prisoners with one another so that they can exchange tips and tricks for how to engage in criminal activity, while also tolerating the presence of powerful prison gangs, enforcing their will on sometimes-conscripted members with threats against loved ones on the outside and with violence and rape on the inside. We have “three strikes” laws that are intended to confined recidivists in prison forever, filling up our prisons with large numbers of these sorts, leaving them with nothing to do but to file patently silly lawsuits alleging that crunchy peanut butter as opposed to creamy is a form of cruel and unusual punishment. Should a prisoner be released either by way of finishing a sentence or by way of parole, they are never truly deemed to have “paid their debt” and allowed to fully re-integrate into society; employment opportunities for convicted felons are substantially restricted (construction is about as good as it gets for the vast majority of them), police scrutiny is dramatically heightened (concededly for good reason in many cases), and if the offense classified as a sex offense, their ability to find an appropriate place to live are substantially restricted.
We have a system of, particularly for sex offenders, lifelong punishment for crimes. As a polity, we seem to simply want criminals to go away and never come back. A neat and convenient way to do this would be to impose the death penalty for every felony, perhaps as depicted in one of the better-concieved episodes of Star Trek (summary here, and another, more amusing summary by Wil Wheaton here). Is this really what people want? Do we as a society really secretly long for this — if you commit a crime, particularly a sex crime, you will be removed from society and then quietly and invisibly killed — as the cost-efficient, permanent solution to crime? Would it even work?
There are possibilities for serious reform. We can repeal laws that punish behaviors that are victimless; prostitution and drug use are among these. Unlike other “legalize it” types, I don’t see decriminalization of drugs as a panacea to these problems. We can use GPS sensors and trackers to enforce house arrests for appropriate sorts of prisoners. It’s not clear to me how effective drug rehabilitation programs or other kinds of efforts to impose behavior modifications are, at least without voluntary participation; I do know that as things are now, a substantial number of parole violations result from parolees skipping counseling meetings. My point is not that every proposed reform is going to be effective, it’s that no one is really suggesting that an obviously-broken system needs reforming.
That’s because, unfortunately, real reform of our penal system is politically impossible in our current political climate. A serious proposal to reform the penal system is doomed to being seen as “soft on crime” and there seems to be an element of the body politic that prefers a degree of retributive sadism in our treatment of those who have harmed others. It’s a shame, but the fact that there is a failure of imagination as well as a failure of budgeting within our political institutions has resulted in a revolving door prison system, a loop in which we have more crimnals that we can confine, who then must be released and presumably they will offend again because the legal system has been rigged to make it very easy for them to be sent back into a system that soon will be required to spit them out once more, before either adequate punishment is imposed or whatever putative rehabilitative effects of prison can take effect.
The result is an inability of the system to protect the law-abiding majority from those who cannot or will not restrain themselves from causing harm to society, operating at substantially greater expense than necessary.
MAY 24, 2011
Burt Likko is the pseudonym of an attorney in Southern California. He is sometimes known as the "Transplanted Lawyer" in commemoration of a two-year sojourn in East Tennessee which was something of a transformative life experience. His interests include politics and public policy, Constitutional law with a focus on the separation of church and state, cooking, good wine, and bad science fiction movies. He blogs pseudonymously to maintain a tissue of fiction in the event that he is ever nominated to the bench although he has little doubt that a sufficiently motivated detective could ascertain his true identity. It's a good question as to why anyone would particularly care about his true identity in the first place.
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