This post originally appeared in the Crime Report.
Dressed in a navy-blue windbreaker emblazoned with the gold seal of the Great State of California, Governor Arnold Schwarzenegger leans out a watchtower window and, as cameras click furiously below, stares through a tangle of razor-sharp concertina wire onto the sprawling, pentagon-shaped grounds of Mule Creek State Prison.
It’s August 2004, and Schwarzenegger, fresh on the heels of his stunning victory in a raucous November 2003 recall election, is taking a choreographed tour of the 886-acre facility built in the tree-studded foothills of the Sierra Nevadas.
Mule Creek is a maze of double-tiered, steel and concrete cellblocks that house 3,700 inmates -- one of 33 mammoth prisons that dot California’s rural back country and make up the largest corrections system in the nation -- and the third largest in the world, with 300,000 adult prisoners and parolees, a $6 billion annual budget and 54,000 employees.
It is also one of the most dysfunctional. With a population of 165,000 inmates, California’s prisons even then were operating at 170 percent over capacity.
As he ends his tour, Schwarzenegger delivers a powerfully unequivocal pledge.
"We are going to change the culture that allows the (prison) code of silence," he tells the assembled reporters. "And we won’t stop until we tear down the whole wall and see it on the ground in a pile of rubble."
Six years later, that pledge is a painful memory. As the governor departs from Sacramento, he is leaving California’s once-progressive prison system in some ways in as bad or worse shape than it was when he entered office.
A crisis foretold
Nobody expected California prison reform to be easy. California’s prison population had skyrocketed 580 percent over the past quarter-century, rising from 24,000 in 1980 to 165,000 by 2004. One reason for the explosive increase was the state’s parole policies, which required that almost every released prisoner serve three years on parole -- no mater their potential threat to public safety upon his or her release. Consequently, as many as 90,000 parolees were being sent back to prison annually, many for minor technical parole violations such as missing a meeting or testing dirty for drug use.
As a result, California’s prisons had become so crowded that, despite double-bunking in the system’s claustrophobically tiny cells and the building of 22 new prisons over two decades, gyms, chapels, recreation areas and classrooms on prison grounds had been turned into makeshift dorms where over 10,000 inmates were forced to sleep in suffocating close, triple-tiered bunk beds.
In 2004, when Schwarzenegger came to Mule Creek, things were only getting worse.
A rigid code of silence among prison guards was shielding brutal officers, corrupting recruits, intimidating whistle-blowers and generating one damning investigation after another.
Violence was endemic. At Pelican Bay State Prison, correction officers used high-powered rifles to break up fights they’d sometimes provoked. In the 10-year period of 1989 through 1998, 39 prisoners were reported killed at the hands of guards, and another 200 were seriously wounded, a record unheard of in other state prisons.
At the same time, the state’s $1.1-billion-a-year prison medical system was imploding. Decades-long mandatory-minimum sentences were driving medical costs through the ceiling as inmates aged and sickened; and the quality of care was plummeting. Patients’ symptoms were being routinely misdiagnosed, the wrong medications regularly dispensed, and guards were shackling pregnant prisoners to beds as they delivered their babies. Filthy infirmaries were being operated without running water, and the vacancy rate for physicians was so high that at one prison there was just one staff doctor for 6,000 inmates.
Adding to the urgent sense of crisis was the pressure emanating from federal and state courts demanding reform. In 1995, a federal judge ruled that conditions in California prisons were so "cruel and unusual" that they were subjecting individuals to treatment that would "very likely render them psychotic … that cannot be squared with evolving standards of humanity and decency." In a historic ruling he then placed the prison system under injunctive relief, requiring the system to submit to his oversight and compulsory reforms.
Schwarzenegger’s Reaganesque pledge to "tear down the wall" encouraged many observers to think genuine change was finally on the way. The governor continued to expand his prison reform agenda, promising that rehabilitation would take precedence over punishment and the system’s old operating philosophy of simply warehousing inmates.
But perhaps his most significant pledge turned out to be his undoing. Schwarzenegger vowed to challenge the unchecked political influence of California’s powerful 32,000-member coalition of corrections and parole officers known as the California Correctional Peace Officers Association (CCPOA), which had been literally dictating budget-busting state corrections legislation and counter-productive, anti-reform policy for decades.
In those initially hopeful days of 2004, Schwarzenegger seemed to be the right reformer in the right place. Despite his political inexperience, the former Hollywood action hero was proving to be a serious, independent man determined to shake up California’s notoriously gridlocked politics.
A cash cow
Instead, however, California’s corrections system appears to have defeated the one governor who seemed to have a chance to wrestle it into shape. Seven years after his election, it is still consuming over 8 percent of the state’s general fund (or $10.6 billion annually). Its inmate housing overcapacity had risen to 200 percent in 2009. The 10,000 beds in emergency dorms have grown to 16,000, causing conditions of such "extreme peril" for prisoners and guards that Schwarzenegger was forced to declare a system-wide state of emergency in 2006.
To be fair, the picture isn’t totally bleak.
In 2009, Schwarzenegger signed into law legislation exempting low-risk offenders from the traditional three years of supervised parole that every parolee had had to serve, saving $100 million a year and permitting parole agents to focus on high-risk parolees.
The prospects for improving the catastrophic medical services have also improved since Pacific McGeorge School of Law professor Clark Kelso seized the prison medical system and took over its daily functioning in 2006.
Since then, the annual health care budget has doubled to $2 billion, and substantial progress has been made. According to Kelso, who had been appointed by the court to run the health system, there has been an 85 percent reduction in the number of prisoners who died as a result of a lack of care.
Yet the rest of the prison landscape has if anything taken a turn for the worse. In 2009, a federal judge declared inmate-against-inmate violence "almost impossible to prevent" given the overcrowding. Meanwhile the recidivism rate is still hovering at 67 percent.
While the legislation on parole for low-risk offenders was an important step, the key elements of sentencing reform still remain unaddressed. As Aaron Rappaport and Kara Dansky recently pointed out in the Federal Sentencing Reporter: "In 2009, approximately 32,000 [California prison ] inmates … were serving indeterminate life terms [of 15 or 25 years to life] -- roughly one-fifth of the state’s entire prison population and the highest proportion of life inmates of any state in the United States."
Unable to achieve transformational change in California’s prisons, Schwarzenegger opted for short-term relief by signing into law a $13.1 billion bill to build 83,000 new prison and jail cells.
The Supreme Court steps in
But it was far from enough. In 2009, a three-judge federal panel finally put a humiliating end to the years of ineffective policymaking in California prisons by putting the state itself, in effect, on parole. The panel declared that the prisoner overload had led to inmate medical care so inadequate that it violated the U.S. Constitution’s Eighth Amendment’s prohibition against cruel and unusual punishment. It then ordered the state to reduce its inmate population by 40,000 inmates within three years -- almost one-quarter of the total prison population.
Schwarzenegger appealed the decision. Last June, the U.S. Supreme Court agreed to hear the case, setting the stage for a historic civil rights ruling that could determine the federal government’s power to force states to reform overcrowded, inhumane conditions in corrections systems across America.
That’s clearly not the kind of landmark moment that Schwarzenegger had in mind when he issued his ambitious pledge at Mule Creek back in 2004.
But to anyone familiar with California politics -- and especially the state’s criminal justice politics -- it shouldn’t have been surprising While some of the blame can be laid on Schwarzenegger’s lack of roots in California’s highly partisan political scene, he found himself facing, as other governors had before him, an array of special interests, and a set of antiquated and/or misguided populist laws that have made rationally governing the state nearly impossible.
The power of prison special interests
Ironically, these were the precise conditions that catapulted Schwarzenegger into office with his promises to fix the state’s dysfunctional administration.
His hopes for prison reform, in particular, collided directly with the correction guards’ powerful union, the CCPOA, which had been consistently in opposition to any systemic change. Over the past 20 years, the CCPOA had cracked a fearsome whip, keeping Democratic and Republican governors and state legislators either obsequiously grateful for the CCPOA’s huge campaign contributions, or petrified the union would label them soft on crime and lavishly donate money to their campaign challenger.
The union’s real power resides in its purse. The CCPOA’s heavy campaign donations have traditionally generated a healthy payoff for its members. Former Governor Gray Davis, for example, awarded a 34 percent pay raise totaling $200 million to already highly paid CCPOA members right before his 2002 reelection, at a time when California was facing a $27.5 billion budget deficit, and the salaries of all other state employees were being frozen. In return, the union gave $2.2 million to Davis’ campaign.
But the CCPOA has also been particularly effective in generating or exploiting populist fears of crime and criminals, helped in part by some high-profile crime cases and right-wing talk radio. Over the preceding two decades, the state legislature has passed over 1,000 tough-on-crime bills, often doubling sentences and bumping misdemeanor offenses up to felonies. Smart, data-driven policy simply fell by the wayside, as the electorate voted in favor of a succession of unfunded law-and-order mandatory-minimum sentencing laws, such as the state’s notoriously extreme three strikes statute. (In California the third strike that triggered the majority of the thousands of 25-year-to-life three strikes sentences has been for a nonviolent crime.)
It didn’t help that Schwarzenegger over-reached in his campaign for structural reform of state administration. In 2005, he called a special election and placed several initiatives on the ballot in an effort to break the power of all of California’s state employee unions. The unions spent more than $100 million to defeat the measures.
The challenge of sentencing
Could he have had a better result with a more narrow focus on some of the roots of the state’s prison crisis -- namely sentencing reform? Reducing sentences for drug and other nonviolent crimes, abolishing state prison sentences for a number of drug and property crimes, and the loosening or elimination of some mandatory-minimum laws would have had a direct impact on prison overcrowding. Even more important, perhaps, would have been the creation of an independent sentencing commission that took sentencing law out of the political theater. (Schwarzenegger, to his credit, called for the creation of such a commission; but in both 2007 and 2009 he failed to win legislative support.)
In any case, the ball is now in the hands of the Supreme Court. Given the issues at stake, the outcome is far from certain. But in 2003 the Supreme Court upheld the state’s three-strikes law. Rejecting arguments that the law was a violation of the Eighth Amendment prohibition against cruel and unusual punishment, the court, in a 5-4 decision, relied on states’ rights precedent to rule in favor of California.
Whomever emerges as Schwarzenegger’s successor after Nov. 2 might well be hoping that the Court will ignore the precedent this time around.
If the justices reject the three-judge panel’s order to reduce the prison population by 40,000, the ball will once again be thrown back into the hands of California’s craven political leadership and dysfunctional governing structure.
And results will be predictable. The state -- and its notorious corrections system -- will be back to square one.
Joe Domanick is West Coast bureau chief of the Crime Report. A longer version of this article can be found at www.thecrimereport.org. Please use thecrimereport.org for more information on prisons.