For Whom the Bell Tolls—Crime, Punishment and the Department of Corrections in California
Moss David Posner M.D.
April 03, 2006
In his Meditation # 17 found in his “Devotions upon emergent Occasions,” written in 1624, John Donne (“1573-1631) says:
Nuc lento sonitu dicunt, morieris.
Now this bell tolling softly for another, says to me, Thou must die.
No man is an island, entire of itself; every man is a piece of the continent, a part of the main. If a clod be washed away by the sea, Europe is the less, as well as if a promontory were, as well as if a manor of thy friend's or of thine own were. Any man's death diminishes me, because I am involved in mankind; and therefore never send to know for whom the bell tolls; it tolls for thee...”
Source: Norton Anthology of English Literature. Fifth edition. W.W.Norton, 1962. Vol.1., 1107.
The forests of Oregon undoubtedly have been sorely depleted in an attempt to supply sufficient paper for the plethora of articles that have put the California Department of Corrections on the front burner of national news for the past two years, and this continues with no end in sight. I’ve been intimately involved with this system, and so I would like to share a few personal observations with you, and at the same time I hope that you would ask yourself some hard questions. Here’s the first question:
If you knew nothing more than what you know today, which of only two choices would you prefer: to have inmates treated precisely the way they are treated today, or to have them all released into society today? I’d be willing to bet that regardless of which side of the issue any one person comes down on, everyone will hesitate before answering that question.
Regardless of what criticisms have been directed towards the Department of Corrections, it has a very serious and grave responsibility: to provide incarceration for those who have been deemed criminals and in so doing to protect society—including you and me and our loved ones--.from these people. This is simply undeniable.
Hair-raising examples abound of extensive gang control, complete with Godfathers and hit lists, both originating in—and protected by—the very incarceration of gang members. For some of the indisputable gory details, consult “Media Awareness Project” and ask yourselves how you would feel if these people were let free” and ask yourselves how you would feel if these people were let free.
I hasten to add that this statement of fact in no way exonerates any member of the Department from any illegal or immoral acts perpetuated against those inmates, who are the Department’s responsibility; and in no way does it excuse any injustice perpetuated by the courts or by the prosecutors. And while there is much to criticize in the way the Department comports itself, there is equally as much to fear should certain individuals be released into society.
Putting it in other words, I am heartbroken when I see the way some inmates are treated, and I am fainthearted at the thought of some others of these individuals being free to roam among us and free to act as they might. (I’ve addressed some of these concerns in a previous article.)
With this sobering perspective in mind, let’s consider the present situation, as it exists in the prison system:
The immediate situation that brought all the others to mind was the death rate among inmates as a result of both criminal actions and as the result of suicide. The case that precipitated these concerns was the Madrid case, which occurred in Pelican Bay. This case prompted the federal court to put the prison into under control of a Special Master. (See Madrid v. Gomez.) These concerns led naturally to a consideration of the general state of health and of the treatment of inmates by both the medical personnel and by custody. A mutually stipulated consent decree resulted in numerous reforms occurring under the supervision of the Special Master and the concurrence of Hon. Thelton Henderson of the 9th Circuit Court. I believe this was the first time the federal courts had intervened in state correctional matters.
One of the other--intended—consequences of this was the establishment of the Prison Law Office, which has the singular purpose of being available to inmates, as yet another tool to allow them access to the courts.
As a result, this was followed by a series of other rulings, such as Armstrong v Davis, which applied the Americans for Disabilities Act specifically to the prison population, Clark v California, applying specific new court rulings to the mentally disabled prisoners, Coleman v Wilson, applying special mental health requirements to the prison population,
The most far-reaching ruling is to be found in Plata v. Davis, in which the plaintiffs successfully sued on the basis of Deliberate Indifference and Cruel an Unusual Punishment, as guarded against by our Federal Constitution. On page 6, paragraph 13 of the complaint, the following sentence appears:
Mr. Plata did not have arthroscopic surgery of the right knee until October 1999, approximately 19 months after the doctor’s recommendation.”
However self-evidently egregious this delay may appear, it is far better than the legally accepted delay that occurs routinely in both the Canadian and British Socialized Medical systems. This fact is not an excuse, but it is important to note.
Despite all of the above, the Department of Corrections appears to be unable to make a substantial shift or major change in its implementation of these various rulings. It is a commonly held notion that this is a conscious defiance, and that it is reflected at every level. Nevertheless, I believe this impasse to be indigenous to this and to other systems, however it may appear otherwise. Ironically, the solution lies in large part in that very exposure to public scrutiny which all sides of the issue alleges is a “consummation devoutly to be wished,” so to speak.
The fact of the matter remains that each of these cases and their corresponding legal remedies are expected to apply as if they are in isolation and are independent in their source and existence from the others, respectively. As we observe the understandably progressive impatience of the Court, we see the Court taking specific remedies into its own hands. Recently, the Court has ordered progressive raises in salaries to apply both to the very medical practitioners who have been so severely criticized, as well as to any new applicants for employment in this system.
Simultaneous with this, we have seen the sequential tenure and subsequent firing or resignation of key players. Dr. Rene Kanan (whom I have criticized heretofore) has been supplanted by two new experts. Jeanne Wofford, cautiously designated as the “Secretary, Acting,” thus emphasizing the enduring transient state of affairs has replaced Director Hickman, who resigned, having replaced the prior Director for a brief period, and who was frustrated in his efforts to evoke changes.
Despite any criticisms that can be leveled, just and unjust, I truly believe that most all of these individuals sincerely started wanting very badly to set things right; but the plain and simple fact of the matter is that nobody knows exactly what to do. Most of these people in high places have followed a pattern of both intense and futile attempts at organizing and ended up finding scapegoats. And when someone is outspoken in his or her criticism (as I have been) they become fair game for attack.
The other plain and simple fact of the matter is that, until these revolving-door leaders go down into the trenches and speak with the rank and file personnel, without recrimination resulting to staff on any level, little will be accomplished. Recently, two new nationally recognized experts have been brought in. If they follow the similar paths as did their predecessors, they will meet with the identical degree of success.
You may wonder—why are not these problems seen in other states. The answer is that they are seen—if they are allowed to be seen. I say this because some states have brought in private correctional companies to run the prisons. Tragically, this has resulted in an additional layer of insulation against exposure and an additional protection against discovery of malfeasance. There are many examples of this.
An increase in salaries is a very commendable and deserved action; but it is limited in its effect: Most doctors who agree to go into corrections do so not because of the spectacular salary but because of the regular hours and the guaranteed benefits. And seeing the fate that has come to some of us doesn’t exactly bode well for others contemplating employment.
What is needed is leadership, non-political and with integrity. This means that new directors have two undeniably tasks: They must talk to all parties, prisoners, and doctors—to all of the worker bees. Then they must have the courage to make bold however financially untenable suggestions to the Court—not by tempering their conclusions with caution, should their suggestions appear far-fetched. It is precisely far-fetching that is needed.
When I was the acting Chief Medical Officer at the Substance Abuse Treatment Facility I wanted to make a difference in the worst way—and I started to do just that. I spent hours in the evening returning phone calls and did not leave until after 10:00 P.M. most days. Yet I could not get the support I desperately needed, and was edged out and kept out. This was not inevitable.
There are two other considerations, and they are both vast in their details and implications. These are the custody side of the house, and the Law itself:
We all have an implicit notion that the law, as defined in its details, represents a corresponding remedy to wrongdoing in a social context. That’s what the law is supposed to be. Yet, with mandatory enhancements, many politically and then legislatively inspired, we see, in many cases, draconian sentences for what common sense regards as the most frightfully tenuous of reasons. In fact, many judges are powerless to use their own judicial good judgment. This, coupled with the practice of plea-bargaining and the impossible expense of really good criminal defense lawyers, renders a defendant—guilty or innocent—next to powerless in the face of the legal steamroller.
Finally, let’s consider the custody side of the house:
I mentioned earlier that prison is a dangerous place, and many prisoners are really frightening and dangerous people. That having been said, the fact is that custody is in the front-line position and therefore is virtually isolated in its relationship to the inmates. It would be just plain wrong to assume that this of necessity leads to brutal or inhuman behavior, at the same time, it can hardly do otherwise:
Don’t be outraged or surprised at this assertion. Lord Acton said, “Power corrupts, and absolute power corrupts absolutely.” How could it be otherwise? One only has to look at the history of the Los Angeles Police Department, and in particular the Ramparts division (which has just recently been back in the news.) The LAPD was at one time declared “a rogue organization” by court-approved application of the RICO statutes. At the very least, the Department of Corrections has not been so designated.
Let’s take this further: The documented behavior of many of our armed forces in Iraq is a matter of growing and progressively alarming public record. The “rendition” policy of this administration and the sworn testimony of people such as the recently demoted General Janis Karpinski support this contention. In the latter case, part of the blame belongs to the administration, which condones such actions.
Yet the fact of the matter is that no sworn officer, acting under color of authority, in a hostile and continuously lethal environment can avoid becoming so influenced and jaded. Whether we like it or not, this is not “custody” nature; this is human nature. I strongly support the notion of a draft for all eligible citizens, at the age of maturity, to fulfill the positions of officers of the court and to be rotated periodically between the various state positions.
Why is this any different than the “drafting” of citizens for mandatory jury duty? Moreover, the policing power lies in the 2nd amendment; and the true legal of “a militia” really mandates this notion.
It’s about time that we opened the doors of the prisons to public responsibility, both financially and personally—as it rightfully should be.
All of which brings us back to Crime and Punishment. Leaving hardened gang members aside (for whom I have precious little compassion) the remainders are human beings, however meager their prior concern for their fellow man may have been. At this time they are in prison, and are suffering the consequences of their actions. If we are to expect them to change their behavior, we can hardly do so by paying them the grotesque compliment of imitating their actions and attitudes.
Even more to the point, by becoming like these prisoners, we demean ourselves, in our own eyes—and worse yet, in the eyes of God.
Nuc lento sonitu dicunt, morieris.
Now this bell tolling softly for another, says to me, Thou must die.
No man is an island, entire of itself; every man is a piece of the continent, a part of the main. If a clod be washed away by the sea, Europe is the less, as well as if a promontory were, as well as if a manor of thy friend's or of thine own were. Any man's death diminishes me, because I am involved in mankind; and therefore never send to know for whom the bell tolls; it tolls for thee...”
Source: Norton Anthology of English Literature. Fifth edition. W.W.Norton, 1962. Vol.1., 1107.
The forests of Oregon undoubtedly have been sorely depleted in an attempt to supply sufficient paper for the plethora of articles that have put the California Department of Corrections on the front burner of national news for the past two years, and this continues with no end in sight. I’ve been intimately involved with this system, and so I would like to share a few personal observations with you, and at the same time I hope that you would ask yourself some hard questions. Here’s the first question:
If you knew nothing more than what you know today, which of only two choices would you prefer: to have inmates treated precisely the way they are treated today, or to have them all released into society today? I’d be willing to bet that regardless of which side of the issue any one person comes down on, everyone will hesitate before answering that question.
Regardless of what criticisms have been directed towards the Department of Corrections, it has a very serious and grave responsibility: to provide incarceration for those who have been deemed criminals and in so doing to protect society—including you and me and our loved ones--.from these people. This is simply undeniable.
Hair-raising examples abound of extensive gang control, complete with Godfathers and hit lists, both originating in—and protected by—the very incarceration of gang members. For some of the indisputable gory details, consult “Media Awareness Project” and ask yourselves how you would feel if these people were let free” and ask yourselves how you would feel if these people were let free.
I hasten to add that this statement of fact in no way exonerates any member of the Department from any illegal or immoral acts perpetuated against those inmates, who are the Department’s responsibility; and in no way does it excuse any injustice perpetuated by the courts or by the prosecutors. And while there is much to criticize in the way the Department comports itself, there is equally as much to fear should certain individuals be released into society.
Putting it in other words, I am heartbroken when I see the way some inmates are treated, and I am fainthearted at the thought of some others of these individuals being free to roam among us and free to act as they might. (I’ve addressed some of these concerns in a previous article.)
With this sobering perspective in mind, let’s consider the present situation, as it exists in the prison system:
The immediate situation that brought all the others to mind was the death rate among inmates as a result of both criminal actions and as the result of suicide. The case that precipitated these concerns was the Madrid case, which occurred in Pelican Bay. This case prompted the federal court to put the prison into under control of a Special Master. (See Madrid v. Gomez.) These concerns led naturally to a consideration of the general state of health and of the treatment of inmates by both the medical personnel and by custody. A mutually stipulated consent decree resulted in numerous reforms occurring under the supervision of the Special Master and the concurrence of Hon. Thelton Henderson of the 9th Circuit Court. I believe this was the first time the federal courts had intervened in state correctional matters.
One of the other--intended—consequences of this was the establishment of the Prison Law Office, which has the singular purpose of being available to inmates, as yet another tool to allow them access to the courts.
As a result, this was followed by a series of other rulings, such as Armstrong v Davis, which applied the Americans for Disabilities Act specifically to the prison population, Clark v California, applying specific new court rulings to the mentally disabled prisoners, Coleman v Wilson, applying special mental health requirements to the prison population,
The most far-reaching ruling is to be found in Plata v. Davis, in which the plaintiffs successfully sued on the basis of Deliberate Indifference and Cruel an Unusual Punishment, as guarded against by our Federal Constitution. On page 6, paragraph 13 of the complaint, the following sentence appears:
Mr. Plata did not have arthroscopic surgery of the right knee until October 1999, approximately 19 months after the doctor’s recommendation.”
However self-evidently egregious this delay may appear, it is far better than the legally accepted delay that occurs routinely in both the Canadian and British Socialized Medical systems. This fact is not an excuse, but it is important to note.
Despite all of the above, the Department of Corrections appears to be unable to make a substantial shift or major change in its implementation of these various rulings. It is a commonly held notion that this is a conscious defiance, and that it is reflected at every level. Nevertheless, I believe this impasse to be indigenous to this and to other systems, however it may appear otherwise. Ironically, the solution lies in large part in that very exposure to public scrutiny which all sides of the issue alleges is a “consummation devoutly to be wished,” so to speak.
The fact of the matter remains that each of these cases and their corresponding legal remedies are expected to apply as if they are in isolation and are independent in their source and existence from the others, respectively. As we observe the understandably progressive impatience of the Court, we see the Court taking specific remedies into its own hands. Recently, the Court has ordered progressive raises in salaries to apply both to the very medical practitioners who have been so severely criticized, as well as to any new applicants for employment in this system.
Simultaneous with this, we have seen the sequential tenure and subsequent firing or resignation of key players. Dr. Rene Kanan (whom I have criticized heretofore) has been supplanted by two new experts. Jeanne Wofford, cautiously designated as the “Secretary, Acting,” thus emphasizing the enduring transient state of affairs has replaced Director Hickman, who resigned, having replaced the prior Director for a brief period, and who was frustrated in his efforts to evoke changes.
Despite any criticisms that can be leveled, just and unjust, I truly believe that most all of these individuals sincerely started wanting very badly to set things right; but the plain and simple fact of the matter is that nobody knows exactly what to do. Most of these people in high places have followed a pattern of both intense and futile attempts at organizing and ended up finding scapegoats. And when someone is outspoken in his or her criticism (as I have been) they become fair game for attack.
The other plain and simple fact of the matter is that, until these revolving-door leaders go down into the trenches and speak with the rank and file personnel, without recrimination resulting to staff on any level, little will be accomplished. Recently, two new nationally recognized experts have been brought in. If they follow the similar paths as did their predecessors, they will meet with the identical degree of success.
You may wonder—why are not these problems seen in other states. The answer is that they are seen—if they are allowed to be seen. I say this because some states have brought in private correctional companies to run the prisons. Tragically, this has resulted in an additional layer of insulation against exposure and an additional protection against discovery of malfeasance. There are many examples of this.
An increase in salaries is a very commendable and deserved action; but it is limited in its effect: Most doctors who agree to go into corrections do so not because of the spectacular salary but because of the regular hours and the guaranteed benefits. And seeing the fate that has come to some of us doesn’t exactly bode well for others contemplating employment.
What is needed is leadership, non-political and with integrity. This means that new directors have two undeniably tasks: They must talk to all parties, prisoners, and doctors—to all of the worker bees. Then they must have the courage to make bold however financially untenable suggestions to the Court—not by tempering their conclusions with caution, should their suggestions appear far-fetched. It is precisely far-fetching that is needed.
When I was the acting Chief Medical Officer at the Substance Abuse Treatment Facility I wanted to make a difference in the worst way—and I started to do just that. I spent hours in the evening returning phone calls and did not leave until after 10:00 P.M. most days. Yet I could not get the support I desperately needed, and was edged out and kept out. This was not inevitable.
There are two other considerations, and they are both vast in their details and implications. These are the custody side of the house, and the Law itself:
We all have an implicit notion that the law, as defined in its details, represents a corresponding remedy to wrongdoing in a social context. That’s what the law is supposed to be. Yet, with mandatory enhancements, many politically and then legislatively inspired, we see, in many cases, draconian sentences for what common sense regards as the most frightfully tenuous of reasons. In fact, many judges are powerless to use their own judicial good judgment. This, coupled with the practice of plea-bargaining and the impossible expense of really good criminal defense lawyers, renders a defendant—guilty or innocent—next to powerless in the face of the legal steamroller.
Finally, let’s consider the custody side of the house:
I mentioned earlier that prison is a dangerous place, and many prisoners are really frightening and dangerous people. That having been said, the fact is that custody is in the front-line position and therefore is virtually isolated in its relationship to the inmates. It would be just plain wrong to assume that this of necessity leads to brutal or inhuman behavior, at the same time, it can hardly do otherwise:
Don’t be outraged or surprised at this assertion. Lord Acton said, “Power corrupts, and absolute power corrupts absolutely.” How could it be otherwise? One only has to look at the history of the Los Angeles Police Department, and in particular the Ramparts division (which has just recently been back in the news.) The LAPD was at one time declared “a rogue organization” by court-approved application of the RICO statutes. At the very least, the Department of Corrections has not been so designated.
Let’s take this further: The documented behavior of many of our armed forces in Iraq is a matter of growing and progressively alarming public record. The “rendition” policy of this administration and the sworn testimony of people such as the recently demoted General Janis Karpinski support this contention. In the latter case, part of the blame belongs to the administration, which condones such actions.
Yet the fact of the matter is that no sworn officer, acting under color of authority, in a hostile and continuously lethal environment can avoid becoming so influenced and jaded. Whether we like it or not, this is not “custody” nature; this is human nature. I strongly support the notion of a draft for all eligible citizens, at the age of maturity, to fulfill the positions of officers of the court and to be rotated periodically between the various state positions.
Why is this any different than the “drafting” of citizens for mandatory jury duty? Moreover, the policing power lies in the 2nd amendment; and the true legal of “a militia” really mandates this notion.
It’s about time that we opened the doors of the prisons to public responsibility, both financially and personally—as it rightfully should be.
All of which brings us back to Crime and Punishment. Leaving hardened gang members aside (for whom I have precious little compassion) the remainders are human beings, however meager their prior concern for their fellow man may have been. At this time they are in prison, and are suffering the consequences of their actions. If we are to expect them to change their behavior, we can hardly do so by paying them the grotesque compliment of imitating their actions and attitudes.
Even more to the point, by becoming like these prisoners, we demean ourselves, in our own eyes—and worse yet, in the eyes of God.
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