Who sets the captive free

Looking at the pictures of Israeli soldier Gilad Shalit being released from six years of captivity under the Hamas regime in Gaza, and the scenes of scores of Palestinian fighters being released from prisons in Israel, I could not help but think of the verse in the traditional Jewish morning prayers, the Amidah, in which the worshiper praises God for many kinds of acts on behalf of humans including, "who sets free the captive" (in some translations). Those words have always amazed me. I understand why we would need God to raise the dead, and perhaps to heal the very sick, but cannot we free prisoners on our own?

There is of course, an interesting theme in TORAH concerning the role of God in human decisions about freedom (think of Pharaoh's heart being "hardened" against freeing the Israelites); as if the almighty were daring us to raise the more fundamental question of when humans really can choose anything freely. But it also reminds us that there is something divine in the freeing of any prisoner, an act of trust, faith, and belief in the possibility that tomorrow will be different, and that we who hold the captive can escape our own prison of fear.

For now, as Ethan Bronner reports (here) in today's NYTimes, the site of prisoners being released has hardened hearts on both sides of the Israel/Palestine conflict.

Israelis, at first thrilled at the sight of their liberated soldier, were angered by how he looked — frail, wan and underfed.

Hamas officials said their members had been subject in Israeli prisons to “torture, compulsion and revenge.”

The overall strategic assessment, appears equally bleak, with the deal having strengthened to two elements in the Israel/Palestine sovereignty conflict most associated with rejection of compromise, Hamas and Netanyahu. Call me an optimist but I think the shifting of the conflict, even temporarily to the prisoner front is a good thing. Each side and the world should now look hard at these prisoners and demand an accounting for how they were treated.

In that regard Hamas should hang its head in shame for releasing Shalit in a visibly emaciated and sickly state. Any claim in the world that they represent the legitimate aspirations of Palestinian people is put into question by this image, and by their decision to deny Red Cross access to their prisoner. Shalit's own testimony will tell us more about the conditions under which he was kept. Perhaps Hamas can convince us that it's own status as a hunted outlaw organization, and the all seeing eye of Israeli intelligence, explains the necessity of both conditions, but it will be against a heavy burden of proof on a regime that has all the attributes of statehood other than legitimacy.

At the same time, they should present their prisoners to the world to back up their claims of "torture, compulsion and revenge." These are the right questions to ask of the means and motive of any regime of imprisonment, no matter how presumptively valid (Hamas might want to look into the mirror of "compulsion and revenge" while they are at it). Israel also must regret its ill advised decision just this September to strip Palestinian prisoners of many of their opportunities for communication and education, to increase pressure on Hamas to release Shalit. Nobody assumes Israeli prisons are as crude as the conditions under which Gilad Shalit was held, but long term imprisonment presents a path to degradating and inhuman treatment just as inexorable as bad conditions and lack of nourishment. Things that can seem like frills in the abstract, communication and education, become essential to the maintenance of human dignity when the years turn to decades. Israel must also question the validity of holding so many prisoners and for so long. Mass incarceration makes no more sense as a military strategy than it does as a crime control one. Suicide bombing has stopped because of the barrier wall and the political choice of Hamas to rely on rockets, not because there are not enough demoralized young people to carry them.

I am most hopeful because the debate about the prisoners has the chance to elevate a conflict that has been for too long about blood and soil, and bring it back to the real interests of the human beings on both sides. The Egyptian video-taped interview of Gilad Shalit as he was transferred from the custody of Hamas may raise ethical questions, but you could not escape the simple dignity of Shalit's quiet and deliberate answers to the journalist's questions. The story of a mother fainting on hearing the news that her daughter, an attempted suicide bomber, would be on the bus returning after twelve years in prison (read Chris McGreal's reporting in the Guardian) reminds us of the shear physical power of our bonds to our children.

The captive, stripped of the elements, bomb belts and uniforms, which once made him or her a threat in the eyes of the captors, becomes, in the end, a human being, and a representative of the divine in all of us.

Realignment and Beyond

Earlier this year, Governor Edmund G. Brown Jr. signed Assembly Bill (AB) 109 and AB 117, historic legislation that will enable California to close the revolving door of low-level inmates cycling in and out of state prisons. It is the cornerstone of California’s solution for reducing the number of inmates in the state’s 33 prisons to 137.5 percent design capacity by May 24, 2013, as ordered by the U.S. Supreme Court.

As the above quote from the California Department of Corrections and Rehabilitation's realignment website, suggests, it is the most important shift in penal policy in California in forty years, but few appear to care about it. Desultory media coverage is matched by the equally desultory opposition of the formidable crime warriors that line the corridors of the California legislature. The title is vague, and perhaps designed to sound boring (even if it hints of profound change). Even while describing it as historic, the Governor has largely suggested it is a necessity for complying with the recent mandates of the federal court with the modest goal of achieving a prison population that is at 137.5 percent of design capacity by 2013. But make no mistake about it, realignment legislates the end of mass incarceration as we've known it.

Realignment has lots of moving parts but two particularly significant elements. The first redefines the punishments available for felonies in the state. Historically, following the common law tradition, California law defined as a general matter, death, or state prison, as the authorized punishments for all felonies (unless otherwise prescribed by the specific offense terms), with a limited option for county jail for a period not to exceed one year. Realignment would remove that one year cap, making county jail a potential sentence for felonies. The law however excludes "serious" or "violent" felonies (technical terms including scores of specific offenses, some not as serious or violent as you might imagine), as well as a laundry list of non-serious, non-violent offenses that law enforcement wanted excluded (mysteriously including "dealing in horse meat"). (download a legislative summary here).

This provision might seem to only trade one form of incarceration, state prison, for another, county jail time; a cynical shell game designed to relieve court pressure without altering our basic addiction to incarceration. There is more potential for change here than meets the eye. Historically it was assumed that persons sentenced to more than one year of incarceration were better off in prisons which were larger facilities, with more opportunities for education, rehabilitation, and employment. Today, after decades of building warehouse prisons aimed achieving only custody, the state prison system is a humanitarian disaster. County jails may have their own problems, but they are typically located closer to the communities that California's prisoners come from, permitting family ties to be sustained and opening access to educational and rehabilitative resources that are far more available, at least in the urban counties from which the vast majority of prisoners come. Potentially more importantly, the law grants broad new authority to counties to assign "low risk" inmates in county jail to home arrest and electronic monitoring. This gives counties the option to replace traditional brick and mortar custody with enhanced supervision and surveillance methods, a move that criminologists have been advocating for decades, but which has been considered an anathema in California's "total incapacitation" penal policy.

Equally important, realignment fundamentally reshapes parole supervision in California. Since the late '70s, virtually all California state prisoners faced a 3 year period of parole supervision in the community under the authority of state parole officers and subject to return to prison for even technical violations of parole. Once parole worked as reentry agency with the ambition of keeping prisoners from going back to prison. But as documented in my first book, Poor Discipline: Parole and Social Control of the Underclass, 1890 to 1990s, California turned its system into a fast-track system for recycling parolees back to prison. Starting in the 1980s, roughly half of California prison admissions have come from parole revocation. The resulting churning of this population, with very short prison sentences (typically 4 to 6 months) for revocation, followed by release with little planning or provision, has been widely condemned for wreaking havoc with prisons while providing less than zero crime control benefits (in effect creating crime). Realignment keeps the three years of post-release supervision but moves responsibility for that supervision to county probation agencies for a significant portion of the prisoners (excluding the serious and violent offenses, as well as various sex offenses). Parolees under county supervision will no longer be subject to return to state prison for technical parole violations and by the authority of the Board of Parole Hearings. Now county courts, the same authorities that sentence offenders charged with crimes, will have to decide on the appropriate sanctions (which could include county jail).

As this blog has advocated before, reducing the role of state parole supervision is by itself a step forward. County probation, while subject to resource constraints, has sustained an institutional culture more oriented toward rehabilitation and reentry than state parole which was assimilated into the custody oriented approach of the prison system decades ago. Moreover, by channeling decision making from the rubber stamp Board of Parole Hearings, which rarely rejects re-imprisonment for parole violations, to county judges, realignment ends the perverse incentive to use state prison as a tool for all kinds of low level violation behavior. Judges who see both parole violators and newly criminally charged defendants can apply a common standard of public safety to both groups.

These two aspects, widening the role for counties in the punishment of felonies and eliminating (or at least significantly reducing) the wholesale recycling of parolees back to state prison for technical violations, go a long way to ending the policy of mass incarceration in California. The heart of that policy was the assumption that removing offenders of all sorts from their communities and placing them in state prisons would make those communities safer. This indiscriminate quality to mass incarceration is a significant part of what led the scale of imprisonment to grow beyond any reasonable bounds and become a humanitarian crisis in California. It also contributed to abandonment of any ambition to provide rehabilitative programming in California prisons or to invest in significant reentry efforts for those leaving. If crime goes down simply by locking more potential criminals up, than rehabilitation and reentry are irrelevant.

These changes are historic and great credit goes to the Coleman and Plata litigations (culminating in the Brown v. Plata, Supreme Court decision in May 2011) which has dragged the state's political class into a long delayed reckoning with our fatally flawed penal system. But realignment leaves in place, and indeed reinforces, one crucial remaining aspect of mass incarceration, the extreme extension of sentences for serious and violent crimes. California prisons are increasingly filled with prisoners sentenced to lengthy or even life terms. The lifers, a group that due to Three-Strikes now includes roughly a fifth of the entire prison population, faces decades in prison and poor prospects for ever being paroled (although there are signs the parole process may be becoming unfrozen). Realignment will only increase the concentration of such prisoners in the state prison system. This will leave us with a smaller prison population perhaps, but one made up of prisoners with little hope or incentive to creating a dignified and safe culture inside prisons. Indeed the management problems created by such a concentration of hopelessness could make our prisons even more degrading than they are today for both prisoners and prison staff.

California needs to fundamentally revisit its sentencing policies for serious and violent crimes. Three-Strikes needs to go and parole release mechanisms recalibrated to assure that prisoners who avoid conflicts and work on their risk factors see a realistic path to freedom. These will be far more controversial moves than realignment and opposition from both Democrats and Republicans in the legislature (and presumably the Correctional Officers union) will be fierce. One step, however, that the Brown administration could take now and with no legislative authorization needed, would be to announce the end of the supermax regime in place at units of Pelican Bay and Corcoran state prisons among others. It is these units, Secured Housing Units, as they are described in California, that are the main focus of the hunger-strike by prisoners both in and out of the SHU, which is continuing across multiple California prisons this week.

The SHU regime of being locked down to your cell for nearly 23 hours a day every day (and in California amazingly you are in many cases sharing this tiny space with a second prisoner) in adds sustained physical suffering and potential psychological disintegration to the already degrading circumstances facing long term inmates. Assignment to a supermax or SHU unit is an administrative decision taken within the Department (which is the executive branch) and not part of the legal sentence imposed by judges based on legislation. Moreover the evidence about violence inside the prison system suggests it is increasingly difficult to justify the SHU as a management tool. An announcement that the SHU system would be wound down and replaced by new strategies for addressing those prisoners who do pose a serious risk to prison staff and other prisoners within two years (that is by the time the Brown decision requires the population reduction target to be reached) would send a ray of hope into this dark core of mass incarceration that is, as yet untouched by realigment. In subsequent posts I will address some of what these new strategies could look like.