Transcript: Remarks by Attorney Donald Specter on the role of federal courts in California’s prison reform before the Assembly Select Committee on Justice Reinvestment on Oct. 21, 2013

Partial transcript of remarks by Donald Specter, Attorney and Director of the Prison Law Office, on the role of federal courts in California prison reform. The hearing before the Assembly Select Committee on Justice Reinvestment was held on Oct. 21, 2013:

My name is Donald Specter. I’m the Director of the Prison Law Office.

What we do is provide free legal services to California and other prison inmates and also juvenile offenders who are incarcerated both in the counties and in the state facilities.

We represent the plaintiffs in both of the cases, which Soderborg testified about before, the Coleman and the Plata case. And we also represent the plaintiffs in the combined case of the three-judge panel, which is responsible for the order limiting the prison population.

Before I get into that, I just want you to know that although we do sue the CDCR a lot, before every time we file one of these lawsuits, we make extensive efforts to try and work out the problems with the Department of Corrections before we actually file the suit. As I will explain in a minute, that is not usually very successful.

So the reason I’m here today is to try to explain the role of the federal courts in the state prison system and really to explain to you what you can do to reduce that role so that my clients obtain better care and I can provide my services to other prisoners in other jurisdictions.

So the first thing is that the Eighth Amendment to the Constitution, as you may all know, prohibits states from imposing cruel and unusual punishment on prisoners, and what that means in practice is that in general terms the state must take reasonable measures to ensure that prisoners are not seriously injured by virtue of their incarceration.

And the most serious and consistent complaint that we have – we get hundreds – we get thousands of letters a week from prisoners. The most serious and consistent [complaint] that we have is about poor health care. And there’s a good reason for that.

As Justice [Anthony] Kennedy wrote in the Plata case, which affirmed the overcrowding order, “Just as a prisoner may starve if not fed, he or she may suffer or die if not provided adequate medical care. A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in a civilized society. If the government fails to fulfill this obligation, the courts have a responsibility to remedy the resulting Eighth Amendment violations.”

And so that’s what the Coleman court in Sacramento and the Plata court in San Francisco have been doing for the last – since 1993 or 5 actually.

In the Coleman case, for example, the court has entered almost 100 orders at this point aimed at one single goal, which is to ensure that prisoners in California receive the basic minimum levels of mental health treatment.

So just to give you an example of how low the bar is and how low the conditions are, the [U.S.] Supreme Court in 2011 used the following example to describe the mental health care in our state prisons: “Because of a shortage of treatment beds, suicidal inmates may be held in prolonged periods in telephone booth-sized cages without toilets. A psychiatric expert reported observing an inmate who have been held in such a cage for nearly 24 hours standing in a pool of his own urine, unresponsive and nearly catatonic. Why was he there? Prison officials explained that they had no other place to put him.”

And in your binder is a picture of – there are these pictures of these holding cages and prisoners are left there for long periods of time and prisoners who are psychotic. And as you can see, there’s no toilet, there’s no ability for him to do anything but stand or sit on the floor…

And just to give you a sense in this picture that shows a prisoner getting mental health treatment in a cage. And if you turn the page, you’ll see a group of those cages and that’s what’s known as group therapy.

Those are the kind of conditions that we’re dealing with.

And as you may have read in the newspapers, especially the Sacramento Bee and the LA Times, a trial is currently underway in the Coleman case about the CDCR’s practice of using pepper spray, tear gas on prisoners who because of their psychosis won’t come out of their cell for treatment.

And one of the other example of that, which is available – publicly available, there’s a tape of this – a psychotic prisoner who can hardly control his thoughts, much less his behavior, is ordered out of his cell in order to get some treatment but because he refuses that treatment, the officers filled his cell with tear gas and he still refused to come out. And on the videotape, a correctional officer interviewed after the fact and he proudly states that he shot the tear gas into the mentally ill prisoner’s toilet and sink so that when that prisoner goes to use those facilities “he’s actually pepper spraying himself”.

In the Plata case, similarly, the court appointed a receiver because the medical care was so bad and the neglect was so bad that prisoners were dying needlessly once every 10 days.

The court stated, “Decades of neglecting medical care while vastly expanding the size of the prison system” – as Mr. Soderborg mentioned in the 1990s – “has led to a state of institutional paralysis. The prison system is unable to function effectively and suffers a lack of will with respect to prisoner medical care.”

So what happened in the ’90s is we built 20 new prisons. They double-celled all those prisons but they only provided medical facilities for 100% not 200%. So we’re vastly short of medical facilities.

That was in 2005. Today, the care is still poor. Medical experts appointed by the court found just a few months ago that at Salinas Valley State Prison they’re not providing adequate medical care to patients and that there are systemic issues that present an ongoing serious risk of harms to patients and result in preventable morbidity and mortality, which means that prisoners are getting injured or dying because of poor care.

So why is the care so poor and why has CDCR not been able to fix the problems and, thus, why are the courts involved?

So there are many answers to these questions but I’m going to give you three big ones.

First, the prison system, despite the court orders, is still extremely overcrowded. There are about 53% more prisoners in the prisons than they were designed to hold. Some prisons are operating at 170% of their design capacity today. The Supreme Court in Plata said that overcrowding was the primary but not the only cause of the reason for the poor care.

And as you see in your binders, you see all those all those gymnasiums with all the prisoners. Those were in effect when we go the three-judge court order. They’ve now been taken down but still prisoners are double-celled and there’s, like I said, almost 170% in some of the prisons.

The second reason California provides poor medical and mental health care – and that’s the reason why the courts are involved – is because the CDCR has never taken its obligation to provide basic health care seriously. One former high-ranking official put it bluntly when he testified before the legislature several years ago and he testified in the court, he said that “providing health care is not one of the prison system’s core competencies” and that “it will never be the business of the Department of Corrections to provide medical care.”

Third, this is also a big crux of the problem is that as you may have heard from the statements of the Governor and the Secretary of Corrections, the administration denies that there are any constitutional problems in our prison system today. Both Governor [Jerry] Brown and Secretary [Jeffrey] Beard have publicly declared that our prison system is providing adequate care and treatment. And taking issue with that statement after hearing evidence demonstrating that mentally ill psychotic prisoners do not get timely access to acute care, the federal court in Sacramento had this to say about their statements: “State officials have simply divorced themselves from reality.”

So instead of making concerted efforts to identify and resolve serious life-threatening issues even after they have been repeatedly brought to their attention, the CDCR fights every attempt to reform the system in court and when they lose in the trial court, they appeal. So the overcrowding case is a good example of that.

The state didn’t deny that the prisons were overcrowded or the fact that the overcrowding made the prisons very difficult to manage. In fact, Governor [Arnold] Schwarzenegger issued a proclamation declaring that overcrowding made the entire prison system unsafe for both the prisoners and the staff because of all the violence and because of the disease that spread.

And over the last two decades, numerous reports by commissions sanctioned by the legislature, including one by former Governor [George] Deukmejian, by experts hired by the CDCR, including Dr. Beard, the current Secretary of Corrections, and the Little Hoover commission have all recognized the problems created by overcrowding and they have all suggested ways to reduce those problems but none of them have taken effect.

So having the state in a state of paralysis, we filed a lawsuit in 2006 based on the Coleman and Plata cases. Five former heads of other state corrections departments testified for us. Some of them testified, including Dr. Beard, for free. Some of them testified this was the first time that they ever testified on behalf of a prisoner in their 20, 30 year careers.

So in 2009, the court issued an order requiring the prison system be reduced by about a third – to 110,000 prisoners by the end of the year. So what did the administration do? Did it fix the problem? No, it appealed to the U.S. Supreme Court.

As you know, the court rejected their appeal and reaffirmed the order. But the state refused to comply with those orders even after the Supreme Court had affirmed them.

After giving the Governor chance after chance after chance to comply over the next several years with the lawful orders of the federal court here and the Supreme Court in Washington, the court found that the Governor was not acting in good faith and threatened to hold him in contempt.

So instead of working hard to fix the constitutional problems that alarmed the Supreme Court, the state did what it usually does, which is it developed and implemented a litigation strategy. It asked the trial court in the Coleman case to end the case, arguing that there were no longer any constitutional violation. The state lost that motion, and what did it do? It appealed.

At the same time, the state asked the three-judges court to modify its injunction that the Supreme Court had recently affirmed, arguing that there are no longer any constitutional violations warranting the population reduction. It lost that motion in the trial court, and what did it do? It appealed. Then it asked the Supreme Court for a stay of that order; it lost that motion. Then it asked the Supreme Court to review the case, and last week, as you probably know, the Supreme Court turned down that request.

So what you have today before you is a situation similar to where you were in the 1990s. You can either you have more prisoners than you can constitutionally house and you have a court order to reduce that populations.

So you have a choice. You can either increase the capacity of the state prison systems by renting out prisons in other states like the Governor has suggested, which is only a temporary solution, just like it was in the 1990s after spending billions and billions of dollars to do that. Or you can try to find other less expensive and more effective ways of punishing and rehabilitating prisoners.

So my suggestion to you is that you look at these other ways that have been put forward in our court cases and in all the reports and try to use programs in the community that are more effective and less expensive.


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