Heeding the ‘will of the people,’ a matter of whose ox is being gored

June 7, 2007

Today, the State Senate passed Senate Bill 924, by Don Perata (D-Oakland).  SB 924 asks California voters if the U.S. should end the occupation of Iraq immediately and begin withdrawing troops and calls on the Bush administration and Congress to provide diplomatic and nonmilitary assistance to promote stability in the Middle East

Political pundits have seized on SB 924 as a tool to bring Democrats out to the polls in February when a measure to fix term limits will likely appear on the ballot and extend the terms of Perata and Assembly Speaker Nuñez is not the subject of this post. There is plenty of justification for cynicism in politics without getting into the motives behind SB 924.

Of particular interest here were remarks made on the Senate Floor today by Senator George Runner (R-Antelope Valley). Runner is a conservative from
Lancaster who, with his wife, Assembly Member Sharon Runner (R-Lancaster), co-authored Proposition 83, also known as “Jessica’s Law.  

Jessica’s Law came on the heels of the tragic molestation and murder of young Jessica Lunsford in Florida and passed easily by a margin of 71 percent to 29 percent last November.

In recent years, the Legislature has raced to pass numerous “get tough” laws on sex offenses in recent years, including  “Megan’s Law,” which requires the registration information of paroled sex offenders to be posted online for public view.

Proposition 83 is no exception to a long list of poorly drafted initiatives. It treats virtually all convicted sex offenders the same, instead of directing limited resources towards those with the greatest risk of re-offending. Its unworkable residency restrictions will ban parolees to rural areas who are not equipped to provide services. Proposition 83 encourages local governments to enact stricter residency restrictions, which will result in a continuous ratcheting up as communities compete to unload their sex offenders to neighboring communities. 

Remarkably, several aspects of Jessica’s Law are less punitive than SB 1128, a bill authored by Elaine Alquist (D-Santa Clara and signed into law by Governor Schwarzenegger last year. This certainly was not Runner’s intention but is indicative of the sloppiness that characterizes lawmaking by initiative.

None of the initiative’s deficiencies were discussed publicly in any meaningful way as there was no organized opposition that could mount an effective media campaign in the era of sound-bite politics.

Today, Runner, a self-described history buff, rose on the Senate Floor to oppose SB 924, correctly opining that the framers of the U.S. Constitution instituted a representative form of government where public policy would be deliberated and seasoned to avoid the excesses of direct democracy, commonly called “the tyranny of the majority.”

In the Federalist Papers, James Madison makes it very clear that passion must be controlled for. (What is unique about American representative government  is that the framers also feared the “tyranny of the minority,” and instituted checks and balances to ensure that elites were held in check.)

In other words, the framers were determined to limit the kind of lawmaking that Runner shamelessly claims credit for as the co-author of Proposition 83. 

When it comes to giving Californians the opportunity to formally voice their objections to the destructive and endless war in Iraq in a peaceful way, Runner suddenly decries the voice of the people. In doing so, he reduces us from citizens to subjects.  


Paying debt early makes no sense

May 30, 2007

Governor Schwarzenegger’s proposed budget contains $1.6 billion to pay off debts incurred in the form of deficit-financing bonds early. If state coffers were overflowing and the state were making badly needed investments in people, then it might make sense. But such is not the case when the state is unable to meet its current obligations.

That deficit-financing bonds were a good thing is highly suspect. They are tantamount to a family taking out a second mortgage in order to pay their grocery bill. They were first proposed by then-Governor Gray Davis as a way of avoiding painful spending cuts following the dot-com collapse which shrunk state revenues. Borrowing to finance current consumption is the byproduct of California’s unusual constitutional requirement that requires a two-thirds super-majority of the Legislature to pass a budget or raise taxes and encourages the minority party to play the obstructionist.

After Davis was recalled from office, deficit-financing bonds were adopted, ironically, by his successor, Governor Arnold Schwarzenegger. At his urging, they were approved by the voters in the form of Proposition 57. Schwarzenegger’s first official act as governor was to reduce the unpopular Vehicle License Fee, which has added $4 billion per year to the state’s budget deficit.

Governor Schwarzenegger now proposes cutting cash assistance to the 200,000 children of parents who are not complying with tightened eligibility requirements. These cuts are short-sighted and will result in additional costs elsewhere. Moreover, it punishes children for the supposed sins of their parents.

The governor also proposes to withhold the state cost-of-living-allowance to the blind, elderly and disabled who currently receive $856 per month for individuals and $1,502 per month per couple.

Political power follows that path of least resistance. Now, state revenues are again declining, this time to due to a flat housing market. Deficit-financing bonds were a bad idea, but paying them off early when taking money away from those who can least afford it is morally indefensible.


Having it both ways with prison expansion

May 25, 2007

A recent editorial from the Orange County Register (“Voters cut out of deal: lawmakers pull a fast one,” May 23, 2007) praises John Coupal, president of the Howard Jarvis Taxpayers Association, for “pointing out the latest deception that occurred in plain sight in the Capitol.”

The deception that the editorial is referring to is Assembly Bill 900,  the prison expansion deal which will finance new prison and jail beds with lease-revenue bonds.

Coupal is correct that this is unconstitutional. Prisons do not generate revenues that could be used to pay off the bonds (in fact, prisons are an enormous drain on state revenues). Therefore, the taxpayers are on the hook for paying for the bonds. According to Article 16 of the State Constitution, any debt incurred by the taxpayers in excess  of $300,000 must be submitted to the voters for approval.

Last year during the Special Legislative Session on Prison “Reform” called by the governor, John Lum from the Coalition for Effective Public Safety and I personally tried to interest the Howard Jarvis Taxpayers Association in this issue when it became apparent that Schwarzenegger was proposing to finance new prison and jail beds with lease-revenue bonds. We were unsuccessful.

Mr. Coupal asks “Why were these bonds not to put to the voters for approval?” He knows the answer.

The reason that the governor and the Legislature did not submit general obligation bonds to the voters is because the voters have never approved a bond measure for prisons.  Polling by the Public Policy Institute of California consistently demonstrates that California voters don’t want more prisons even while voting for initiatives that create more prisoners.

Perhaps if Mr. Coupal had spoken up sooner rather than later, we wouldn’t have had AB 900, which will build 53,000 new prison and jail beds without voter approval.

Or was Mr. Coupal willing to let the governor and the Legislature proceed with prison expansion in order to give him an opportunity to propose a new constitutional amendment?

Rather than proceeding with a “this time we really mean it” amendment to the State Constitution, perhaps the Howard Jarvis Taxpayers Association should sue to prevent the construction of the 53,000 new prison and jail beds from going forward without approval from the voters.


Death chamber shenanigans raises doubts about rehabilitation efforts

May 23, 2007

Article from The Sacramento Bee,  May 13, 2007:

Battle over death chamber: Governor plans to release a plan this week to get the chamber back on track.

By Andy Furillo – Bee Capitol Bureau

It started out as kind of a remodeling project, where corrections officials would convert 2,800 square feet of a San Quentin State Prison visiting room into a state-of-the-art execution chamber.

The initial $400,000 cost was minimal, almost microscopic by state standards. It would take only four months to build, and it would help the state comply with a federal judge who found the old killing room wanting.

Still, the project slammed into controversy, with administration officials contradicting each other, a state senator accusing the Governor’s Office of trying to “deceive” the Legislature, and death penalty supporters blasting opponents for waging a rear-guard attack to forestall executions — a charge the opponents didn’t deny.

As if the emotion surrounding capital punishment wasn’t enough, the dispute over California’s death chamber project has other factors adding to the intensity — big money politics and a federal court hammer that, for now, has stopped the state’s lethal injection process. The Schwarzenegger administration wants to get it going again and is submitting a plan Tuesday to that effect.

For openers, the death chamber project began around the time the California Department of Corrections and Rehabilitation was about to add 53,000 prison and jail beds. If the corrections agency couldn’t get the execution chamber done right, some lawmakers’ thinking went, how could it pull off a $7.9 billion building program?

Then there was California’s lethal injection process, which U.S. District Judge Jeremy Fogel found unconstitutional. The death chamber figured significantly in his findings, and Gov. Arnold Schwarzenegger pledged to come up with a fix by his self-imposed deadline of May 15 — Tuesday — to get the death penalty up and running again.

Following an at-times heated legislative hearing on the project last Tuesday, the capital spin machine revved into high gear.

“This cannot turn into something that will undermine the death penalty in California,” gubernatorial spokesman Adam Mendelsohn said.

“This has got the fingerprints of the governor all over it,” said state Sen. Gloria Romero, D-Los Angeles, who conducted the informational hearing.

Fogel established the chamber as a death penalty battleground when he ruled from San Jose on Dec. 15 that California’s lethal-injection protocol violated the Eighth Amendment’s protections against cruel and unusual punishment. He found the process deficient in five areas, including the space in San Quentin’s old gas chamber where the state was executing the condemned by lethal injection.

The judge ruled that the facility “was not designed for lethal-injection executions.” Executioners had to operate from an area too far away and too poorly lit “to permit effective observation” of the condemned inmate’s final moments, he wrote, while the chamber’s anteroom was too crowded “with prison officials and other dignitaries” to do the job right.

Fogel gave the state 30 days to get back to him with a proposed fix. Just three days later, Schwarzenegger announced that the state would prepare a new, five-point protocol to bring itself into compliance. One item called for a recommendation on improving “the death penalty facility.”

Corrections officials came back with a plan to convert part of a visiting room at San Quentin into a new death chamber. Estimated cost: $399,000, to be paid for with redirected funds. The figure came in below a $400,000 threshold that would have required legislative approval.

Construction began March 5. More than a month later, on April 10, staffers from the Legislative Analyst’s Office visited San Quentin to inspect its medical operation. To their surprise, prison officials told them that a new death chamber was being built. Back in Sacramento the next day, LAO criminal justice director Dan Carson said, “We made sure the appropriate legislative staff were made aware that this project was proceeding.”

Following public disclosure of the project April 12 at a legislative hearing, Romero and other Democratic leaders ripped the plan as an attempt to circumvent their authority to oversee the budget. Schwarzenegger ordered the project shut down on April 20.

Corrections Secretary Jim Tilton said then that the governor took the action because “he’s very concerned about maintaining good communication with the Legislature” and also because the project’s cost by then had exceeded the $400,000 limit. The secretary also said neither he nor the governor had been aware that construction had begun until after the LAO’s April 10 visit.

At Tuesday’s hearing, Corrections Undersecretary Bud Prunty said he attended meetings with gubernatorial staffers about the project and that they were aware the construction had begun.

Mendelsohn identified the staffers as the legal affairs secretary, Andrea Hoch, and the Cabinet secretary, Dan Dunmoyer. Mendelsohn said neither knew construction had been started.

The gubernatorial spokesman said the controversy over when administration staffers knew that construction had begun was missing the key point.

“The issue for the administration was getting the chamber into compliance with the judge’s order, and we were clear that that needed to happen as quickly as possible,” Mendelsohn said.

But Romero said Tuesday after the hearing, “A death chamber just doesn’t get built on its own,” adding she believes the Governor’s Office directed the construction.

“We need for the governor to come clean on who directed this, who authorized this and at what point,” she said. “We need to really understand their intent to evade and deceive.”

Romero said her problem is with the administrative branch and that the issue isn’t so much about the death penalty.

But supporters of capital punishment say the entire episode is being orchestrated by opponents trying to block its application.

“If they want to outlaw the death penalty, start gathering signatures,” Assemblyman Todd Spitzer, R-Orange, said in a prepared statement. “Do not use legislative hearings as bully pulpits to subvert the will of the people and circumvent state law.”

Jim Lindburg, a lobbyist for the Friends Committee on Legislation, was one of several death penalty opponents who spoke against the project at Tuesday’s hearing. He said the new death chamber undermines the message conveyed by Schwarzenegger and legislative leaders that they’ve embarked on a new, rehabilitation-centered era of correctional policy in California.

“We think this shows the emphasis of CDCR will always be about punishment,” Lindburg said in an interview Thursday.

He made no apologies about death penalty opponents seizing on the chamber project to hold up the next lethal injection.

“CDCR is trying to find a humane way to commit an inhumane act, and we just don’t think that’s possible,” Lindburg said.

Friday, the Schwarzenegger administration created a “strike team” to expedite construction for the new jail and prison beds. Romero said if the death chamber project is any indication, the group is in for a tough task.

“I think we have to question the oversight, the accountability, the truthfulness of this administration and this department in handling and properly managing the taxpayers’ dollars,” she said. “I think from what we have found, we should have serious concerns about money that is allocated to this department.”

Schwarzenegger drums up fear on health care proposals

May 23, 2007

Article from The Sacramento Bee, May 23, 2007:

Governor warns of problems in Democrats’ health care ideas

He praises state Chamber of Commerce’s list targeting ‘job killer’ bills

By Kevin Yamamura – Bee Capitol Bureau
12:00 am PDT Wednesday, May 23, 2007 

Gov. Arnold Schwarzenegger warned business leaders Tuesday that Democratic-backed alternatives to his health care plan contain more burdensome requirements than his own controversial payroll fee.

Business groups oppose the Republican governor’s proposed 4 percent payroll charge on employers with at least 10 workers if they do not provide health insurance. His plan also calls for a 2 percent charge on doctors and a 4 percent fee on hospitals.

Schwarzenegger, addressing 1,500 business leaders at the 81st annual Sacramento Host Breakfast, defended his plan as “shared responsibility.” But he took a sarcastic tone in skewering Democratic proposals, which he dubbed “creative ideas.”

He said a single-payer proposal by Sen. Sheila Kuehl, D-Santa Monica, would create a government-run health system that would fare no better than the state’s crisis-ridden prison health care system.

He also criticized a plan “where the employers should have the whole burden,” an apparent reference to a proposal by Assembly Speaker Fabian Núñez and Senate President Pro Tem Don Perata requiring employers to spend at least 7.5 percent of payroll on health care.

Now, that is, of course, also something that we don’t like very well,” Schwarzenegger said. “… So I believe in shared responsibility. And I can guarantee you that my proposal that I have is the best, and I think that’s the one that we should all go with.”

Steven Maviglio, spokesman for Núñez, D-Los Angeles, said the governor should focus on moving his plan through the legislative process.

When the governor has a bill of his own, maybe he can start criticizing ours,” Maviglio said. “There are 120 legislators of both parties, and he can’t find a single person to introduce his bill. I think that speaks for itself.”

California Chamber of Commerce President Allan Zaremberg said businesses agree with the governor’s goals of covering
California‘s uninsured residents but disagree on how to pay for it. He said his organization would rather have the state use existing dollars or money generated from the state’s tobacco tax.

We’re prepared to work with him on that,” said Zaremberg. “If there are new revenues coming out of the Legislature, will you have to go to the people? And what can you do with existing revenues?”

Zaremberg added that businesses are concerned about changes that may damage “an existing market that provides good coverage to most Californians.”

Douglas Tipping, 45, an  Irvine resident who works at Citizens Business Bank, which makes loans to small- and medium-size firms, said most businesses would oppose a plan that requires them to provide insurance for employees. He said he remains open to the governor’s proposal.

“I’m not sold on it yet,” Tipping said after hearing Schwarzenegger. “I’d have to get more details and see more reviews of it.”

The chamber, which sponsored the Host Breakfast, has included the Núñez and Perata health care legislation on its 2007 list of 25 “job killer” bills that the organization believes are bad for business.

Schwarzenegger called the annual chamber list “absolutely spectacular” and “the greatest service for the people of
California.” The governor then seemed to suggest that he would veto those bills, which range from development restrictions in flood-prone areas to a port container fee to pay for pollution control.

“I mean, that’s what we have done for the three years, is we said, ‘Hasta la vista, baby,’ to those bills,” Schwarzenegger said, drawing applause. “Exactly. And that’s we’re going to do for the next four years, terminate those bills.”

Schwarzenegger spokesman Aaron McLear clarified later that the governor has not taken a position on the “job killer” bills.

“He doesn’t have a specific position on those bills, but historically he has agreed with the chamber 90 percent of the time,” McLear said.

The governor did not mention Tuesday that he has staked his recent image as an environmental leader on his signing of a “job killer” bill last year: Assembly Bill 32, which requires California to reduce its greenhouse gas emissions 25 percent by 2020.

Schwarzenegger has focused on publicizing his environmental policies lately, but he rarely mentioned them Tuesday, instead playing up his business-friendly side.

The governor compared his health care plan to business-backed changes he signed to reduce workers’ compensation costs, and he vowed to oppose any attempt to undo those provisions. He highlighted $37.3 billion in public works bonds approved by voters. He referenced a trade mission he will take with business leaders next week to

Schwarzenegger also received applause when he called for more above-ground water storage, a proposal that failed earlier this year in the Legislature. And he made a pitch for leasing the California Lottery to a private firm, noting that billions of dollars could go toward education, health care and paying off debt.

Tipping, a self-described independent, said he thinks the governor’s moderate, “post-partisan” approach is “working a little bit, but it’s a tough row to hoe. … Sometimes I think he represents more Arnold than his party. Which is fine.”

Despite spending the most, U.S. ranks last in health care survey

May 23, 2007

 From The Commonwealth Fund, May 15, 2007:

Despite having the most costly health system in the world, the United States consistently underperforms on most dimensions of performance, relative to other countries. This report—an update to two earlier editions—includes data from surveys of patients, as well as information from primary care physicians about their medical practices and views of their countries’ health systems. Compared with five other nations—Australia, Canada, Germany, New Zealand, the United Kingdom—the U.S. health care system ranks last or next-to-last on five dimensions of a high performance health system: quality, access, efficiency, equity, and healthy lives. The U.S. is the only country in the study without universal health insurance coverage, partly accounting for its poor performance on access, equity, and health outcomes. The inclusion of physician survey data also shows the U.S. lagging in adoption of information technology and use of nurses to improve care coordination for the chronically ill.

Executive Summary

The U.S. health system is the most expensive in the world, but comparative analyses consistently show the United States underperforms relative to other countries on most dimensions of performance. This report, which includes information from primary care physicians about their medical practices and views of their countries’ health systems, confirms the patient survey findings discussed in previous editions of Mirror, Mirror. It also includes information on health care outcomes that were featured in the U.S. health system scorecard issued by the Commonwealth Fund Commission on a High Performance Health System.

Among the six nations studied—Australia, Canada, Germany, New Zealand, the United Kingdom, and the United States—the U.S. ranks last, as it did in the 2006 and 2004 editions of Mirror, Mirror. Most troubling, the U.S. fails to achieve better health outcomes than the other countries, and as shown in the earlier editions, the U.S. is last on dimensions of access, patient safety, efficiency, and equity. The 2007 edition includes data from the six countries and incorporates patients’ and physicians’ survey results on care experiences and ratings on various dimensions of care.

The most notable way the U.S. differs from other countries is the absence of universal health insurance coverage. Other nations ensure the accessibility of care through universal health insurance systems and through better ties between patients and the physician practices that serve as their long-term “medical home.” It is not surprising, therefore, that the U.S. substantially underperforms other countries on measures of access to care and equity in health care between populations with above-average and below average incomes.

With the inclusion of physician survey data in the analysis, it is also apparent that the U.S. is lagging in adoption of information technology and national policies that promote quality improvement. The U.S. can learn from what physicians and patients have to say about practices that can lead to better management of chronic conditions and better coordination of care. Information systems in countries like Germany, New Zealand, and the U.K. enhance the ability of physicians to monitor chronic conditions and medication use. These countries also routinely employ non-physician clinicians such as nurses to assist with managing patients with chronic diseases.

The area where the U.S. health care system performs best is preventive care, an area that has been monitored closely for over a decade by managed care plans. Nonetheless, the U.S. scores particularly poorly on its ability to promote healthy lives, and on the provision of care that is safe and coordinated, as well as accessible, efficient, and equitable.

For all countries, responses indicate room for improvement. Yet, the other five countries spend considerably less on health care per person and as a percent of gross domestic product than does the United States. These findings indicate that, from the perspectives of both physicians and patients, the U.S. health care system could do much better in achieving better value for the nation’s substantial investment in health.

Mirror, Mirror ES1

Key Findings

Quality: The indicators of quality were grouped into four categories: right (or effective) care, safe care, coordinated care, and patient-centered care. Compared with the other five countries, the U.S. fares best on provision and receipt of preventive care, a dimension of “right care.” However, its low scores on chronic care management and safe, coordinated, and patient-centered care pull its overall quality score down. Other countries are further along than the U.S. in using information technology and a team approach to manage chronic conditions and coordinate care. Information systems in countries like Germany, New Zealand, and the U.K. enhance the ability of physicians to identify and monitor patients with chronic conditions. Such systems also make it easy for physicians to print out medication lists, including those prescribed by other physicians. Nurses help patients manage their chronic diseases, with those services financed by governmental programs.

Access: Not surprising—given the absence of universal coverage—people in the U.S. go without needed health care because of cost more often than people do in the other countries. Americans were the most likely to say they had access problems related to cost, but if insured, patients in the U.S. have rapid access to specialized health care services. In other countries, like the U.K and Canada, patients have little to no financial burden, but experience long wait times for such specialized services. The U.S. and Canada rank lowest on the prompt accessibility of appointments with physicians, with patients more likely to report waiting six or more days for an appointment when needing care. Germany scores well on patients’ perceptions of access to care on nights and weekends and on the ability of primary care practices to make arrangements for patients to receive care when the office is closed. Overall, Germany ranks first on access.

Efficiency: On indicators of efficiency, the U.S. ranks last among the six countries, with the U.K. and New Zealand ranking first and second, respectively. The U.S. has poor performance on measures of national health expenditures and administrative costs as well as on measures of the use of information technology and multidisciplinary teams. Also, of sicker respondents who visited the emergency room, those in Germany and New Zealand are less likely to have done so for a condition that could have been treated by a regular doctor, had one been available.

Equity: The U.S. ranks a clear last on all measures of equity. Americans with below-average incomes were much more likely than their counterparts in other countries to report not visiting a physician when sick, not getting a recommended test, treatment or follow-up care, not filling a prescription, or not seeing a dentist when needed because of costs. On each of these indicators, more than two-fifths of lower-income adults in the U.S. said they went without needed care because of costs in the past year.

Healthy lives: The U.S. ranks last overall with poor scores on all three indicators of healthy lives. The U.S. and U.K. had much higher death rates in 1998 from conditions amenable to medical care—with rates 25 to 50 percent higher than Canada and Australia. Overall, Australia ranks highest on healthy lives, scoring first or second on all of the indicators.

Summary and Implications

Findings in this report confirm many of the findings from the earlier two editions of Mirror, Mirror. The U.S. ranks last of six nations overall. As in the earlier editions, the U.S. ranks last on indicators of patient safety, efficiency, and equity. New Zealand, Australia, and the U.K. continue to demonstrate superior performance, with Germany joining their ranks of top performers. The U.S. is first on preventive care, and second only to Germany on waiting times for specialist care and non-emergency surgical care, but weak on access to needed services and ability to obtain prompt attention from physicians.

Any attempt to assess the relative performance of countries has inherent limitations. These rankings summarize evidence on measures of high performance based on national mortality data and the perceptions and experiences of patients and physicians. They do not capture important dimensions of effectiveness or efficiency that might be obtained from medical records or administrative data. Patients’ and physicians’ assessments might be affected by their experiences and expectations, which could differ by country and culture.

The findings indicate room for improvement across all of the countries, especially in the U.S. If the health care system is to perform according to patients’ expectations, the nation will need to remove financial barriers to care and improve the delivery of care. Disparities in terms of access to services signal the need to expand insurance to cover the uninsured and to ensure that all Americans have an accessible medical home. The U.S. must also accelerate its efforts to adopt health information technology and ensure an integrated medical record and information system that is accessible to providers and patients.

While many U.S. hospitals and health systems are dedicated to improving the process of care to achieve better safety and quality, the U.S. can also learn from innovations in other countries—including public reporting of quality data, payment systems that reward high-quality care, and a team approach to management of chronic conditions. Based on these patient and physician reports, the U.S. could improve the delivery, coordination, and equity of the health care system by drawing from best practices both within the U.S. and around the world.


K. Davis, C. Schoen, S. C. Schoenbaum, M. M. Doty, A. L. Holmgren, J. L. Kriss, and K. K. Shea, Mirror, Mirror on the Wall: An International Update on the Comparative Performance of American Health Care, The Commonwealth Fund, May 2007

To read the full report, click here.

More prison folly

May 9, 2007

Today the Senate Public Safety Committee held an informational hearing on the Department of Corrections and Rehabilitation’s (CDCR) construction of a new execution chamber at San Quentin. CDCR began construction of the new execution chamber which was purported to cost $399,000, miraculously just $1,000 short of the amount that would require CDCR to notify the Legislature of the project. 

CDCR purportedly began construction of the new execution chamber in response to a ruling by Judge Jeremy Fogel last December that effectively placed a moratorium on executions in California. Fogel’s ruling found fault with the state’s execution protocols which “resulted in an undue and unnecessary risk of an Eighth Amendment violation.” The ruling mentions, among other things, that “the small [execution chamber] anteroom from which the execution team injects the lethal drugs has been so crowded with prison officials and other dignitaries that even simple movement has been difficult.”

Fogel’s ruling, however, merely required the State to advise the Court whether it intended to revise its execution protocol and, if so, how much time it would need to come up with a new protocol. It did not direct CDCR to build a new execution chamber. Overcrowding in the execution chamber ante room, along with its poor lighting, concerned Fogel because it makes it difficult for officials to monitor the execution. The overcrowding could be reduced by reducing the number of gawkers allowed to witness executions.

Senators Gloria Romero (D-Los Angeles) and Mike Machado (D-Linden) were rightly outraged by the sneaky maneuvering and accounting gimmickry employed by CDCR to avoid legislative approval. After it was publicly revealed that construction of the new execution chamber had begun, CDCR prepared a new budget document that deleted references to Fogel’s December 15 order. CDCR now estimates the cost of the new death chamber at $1.4 million. According to testimony from a CDCR undersecretary, it also appears that Schwarzenegger’s staff knew that construction of the new death chamber had begun, which contradicts their previous statements.

Machado repeatedly challenged CDCR Secretary Jim Tilton and at one point exclaimed that “this happens all to often. In budget hearings, your staff has been less than candid. . . .” 

Machado also made known his displeasure that the department’s secrecy will undermine the prison “reform” proposal passed last week in the eyes of the federal courts who, many insiders believe, could place the entire prison system in federal receivership.

Machado understands CDCR better than most legislators because he chairs a Senate Budget Sub-Committee that oversees CDCR’s budget. A keen businessman, Machado has held excellent hearings that have focused attention on the department’s  management deficiencies and its inability to manage its prison population.

Which brings us to the main focus of this post. 

Machado was a principal co-author to AB 900, the so-called $7.5 billion prison “reform” bill that the governor signed last week. Having Machado present the bill on the Senate Floor, gave it an aura of credibility amongst his fellow senators.

At today’s hearing Senator Romero, who voted against AB 900, repeatedly referred to CDCR as a “black hole in government.”

Why was Senator Machado so willing to throw another $7.5 billion down that black hole?  


Rethinking the “R” in California prison “reform.”

May 8, 2007

Part of what we do in Sacramento is to scrutinize the words of policymakers and make it known when their actions don’t match their words.

Last week, Governor Schwarzenegger signed the much ballyhooed prison “reform” deal. A summary of the bill distributed by legislative leadership before the bill was in print said that “we [the Legislature] are putting the ‘R’ back in CDCR (California Department of Corrections).”

The “R” of course refers to rehabilitation. Indeed, Schwarzenegger characterized the bill as “seismic shift” in the way that California incarcerates as a result of a new-found emphasis on rehabilitation.

Also last week, an accident involving a tanker truck that resulted in the collapse of a freeway overpass in Oakland has Assembly Member Pedro Nava (D-Santa Barbara) chomping at the bit to enact new legislation.

It turns out that the tanker truck driver, James Mosqueda, has a criminal conviction for heroin possession. Nava, a former district attorney who chairs the Assembly Transportation Committee, wants to enact legislation to prohibit people with criminal records from driving trucks loaded with hazardous materials.

Nava rushed to the scene of the accident and told the Associated Press that “a family driving on the highway and looking at a gasoline tanker truck out the window assumes that the driver has met the higher standards.”

Never mind that Mosqueda has remained conviction-free since serving his sentence or that he passed an FBI criminal investigation check. Never mind that no connection between his criminal conviction and the accident has been demonstrated, or that investigators don’t believe that drugs or alcohol played a role in the accident.

Trucking is a profession that pays well and attracts many people with criminal records who receive little vocational training while incarcerated. Does it occurr to Nava that people with criminal records are subjected to employment discrimination and have few opportunties for finding suitable employment?

Earlier this year, Assembly Member Lori Saldana introduced AB 824, which would prohibit prisoners convicted of sex offenses or felony battery of a police officer from working in fire fighting camps.  Working in a fire fighting camp is an earned privilege that promotes rehabilitation and provides prisoners with a rare opportunity to do something good for others.

That the conviction may have occurred decades ago and that a prisoner may have an outstanding behavior record while in prison is of little concern to Saldana. That fire fighting camps have exemplary safety records and that prison wardens complain that prisons have no positive incentives to offer prisoners apparently does not register on Saldana’s radar.

Never mind the fact that CDCR already has the ability to prohibit prisoners from working in fire fighting camps as a result of their behavior behind bars. 

Heaven forbid that prisoners should transform themselves while serving time. Once a sex offender, always a sex offender. 

Then there is CDCR, which has a history of failing to implement rehabilitative programs. CDCR recently went out of its way to begin construction of a new death row at San Quentin without obtaining legislative permission as required by law. Does this sound like a “seismic shift” is taking place at CDCR?  

Old habits are hard to break. While policymakers pat themselves on the back for the “seismic shift”in corrections, they also continue to exploit people’s fear of crime for political gain and limit opportunities for rehabilitation in the process. 

Does the “r” in prison reform stand for “rehabilitation” or “rhetoric?”


Prison deal: where’s the compromise?

May 6, 2007

By now you’ve heard that Governor Schwarzenegger has signed AB 900, The Public Safety and Offender Rehabilitation Services Act of 2007, into law. The outcome reflects a failure of leadership by Governor Schwarzenegger who was unwilling to risk a confrontation with members of his own party and crime victims groups. 

The bipartisan  “compromise” is being touted as a major reform, but others, including myself and some editorial boards, view it as prison expansion first and foremost.

In fact, Schwarzenegger’s official website boasted about it being the largest prison expansion in California’s history, in addition to calling it a “seismic shift” thanks to its purported emphasis on rehabilitation.

AB 900 whisked through both houses of the State Legislature without the benefit of a single committee hearing and with very little debate, with the exception of  several objections raised by Senators Tom McClintock (R-Thousand Oaks) and Sam Aanestad (R-Grass Valley).

McClintock objected to the lack of committee hearings and the high cost of prison construction and operating prisons (McClintock wants to privatize prisons to save money). McClintock also derided the fact that legislators opted to bypass voter approval by selling lease-revenue bonds to finance the 55,000 new prison and jail beds.

McClintock’s objections notwithstanding, the deal that Schwarzenegger and Democrats agreed to last week represents their acquiescence to the right-wing of the Republican party for fear of being labeled “soft on crime” and losing the prison system to federal receivership. 

Rather than doing those things that could reduce the prison population and help avoid a federal takeover,  such as enacting a moratorium on returning parolees to prison for technical violations, paroling some nonviolent offenders early and imposing population caps, the Legislature put a band-aid on an open wound, albeit, a very expensive one ($15 billion when including the debt service on the bonds).

Missing in the “compromise” deal were reforms proposed in the governor’s budget in January. Parole reforms, such as requiring prisoners whose commitment offense was a nonviolent, non-serious felony to be discharged from parole after one year of good behavior, and providing more funds for probation services to provide better supervision and reduce the number of people who fail probation and wind up in prison. Both of these proposals would have reduced overcrowding much sooner then adding new beds and were conspicuously absent from the final deal.

Also missing was Schwarzenegger’s proposal to create a Sentencing Commission, which Republicans touted as synonymous with “early release” and a loss of legislative accountability. Earlier this year, the Republican Caucus drew a line in the sand and said they would not accept any early releases.  

At the bill signing ceremony, Assembly Minority Leader Michael Villines (R-Clovis) expressed relief over the fact that a Sentencing Commission was not part of the “compromise.” While sentencing commissions in other states have resulted in shorter sentences and more alternative sanctions for people convicted of low level, nonviolent offenses, they have also resulted in longer prison sentences for more serious felonies.

Villine’s thinking also fails to grasp that under the current scheme, where legislators and voters continually ratchet up prison sentences without regard for prison capacity, there is no accountability because no single enhancement by itself is responsible for prison overcrowding. 

We will undoubtedly be hearing a lot about “rehabilitation” in coming months. The Schwarzenegger Administration plans to build pre-release centers (often called “re-entry facilities”) in local communities where prisoners will be paroled. Prisoners will spend 30 days in these pre-release centers where they will presumably be given services.

This sounds appealing and is perhaps well-intentioned, but lawmakers should also consider:

  • To what extent are the goals of rehabilitation and punishment in conflict? 

Can we take nonviolent prisoners and put them in a violent environment to serve a prison sentence and expect that the harm done (not to mention the harm to the families of the incarcerated) can be reversed by spending 30 days in a re-entry facility? What about the barriers to successful re-entry?

  • Has this purported “seismic shift” in the Schwarzenegger Administration resulted in a cultural shift within the Department of Corrections and Rehabilitation in that it’s now willing to embrace rehabilitation?

Rehabilitation requires a culture of civility and respect and a belief in the inherent worth of the person you are simultaneously trying to punish and rehabilitate. It also requires a great deal of money.

Where other state programs, such as K-12 public education and transportation are guaranteed a percentage of state tax revenues thanks to ballot box budgeting measures, the likelihood that someone would advance a similar guarantee for prison programming is nil. 

Despite Schwarzenegger’s warm and fuzzy rhetoric, rehabilitation efforts will always remain at the mercy of the Legislature. Every Capitol insider knows that in bad budget years, programming for prisoners is among the first items to be cut.

  • Couldn’t Californians obtain more public safety by investing money for prison expansion into drug treatment, mental health services, health care, education and vocational training in local communities?

Why do so many people have to become snagged in the criminal justice system before they are given essential services? Unless you’re a person of considerable means, or if you’re lucky enough to have a health care plan that provides substance abuse treatment, you’ll need to get arrested in order to receive treatment.  

It should be clear that real reform is complicated and cannot be addressed simply by adding capacity. That these considerations seldom make it into the political discourse in Sacramento and the fact that other states have taken actions to reduce their prison populations makes one wonder whether the seismic shift is really a giant leap backwards.


Crunch time: Stop prison expansion

April 26, 2007

It’s crunch time in Sacramento.
Legislative leaders are meeting privately to determine the course our state will take with regards to our prison system. These decisions also impact our state’s ability to fund other important programs. In what has become a zero-sum dilemma, any increase in prison spending means fewer dollars available for social services, health care and higher education. The Legislative Analyst’s Office has upped its estimate of the cost of incarceration to taxpayers to over $43,000 per prisoner per year. Roughly half of California’s prisoners are incarcerated for nonviolent, non-serious offenses, and at 70 percent, our state’s recidivism rate is double the national average.

Thus, it’s fair to say that the decisions made in Sacramento in the coming days will shape the future of of California. Will California continue to be the leader in incarceration, or will we become a land of hope and opportunity for all?

For the third time in less than a year, Governor Schwarzenegger has proposed to expand our prison system. Twice, your voice has made a difference.

This time, the governor has proposed spending $10.9 billion to construct 78,000 new prison and jail beds. By comparison, the governor has proposed a mere $41 million increase in new spending for programming that would reduce recidivism and reduce prison overcrowding. In other words, the governor has proposed making a broken system bigger under the guise of “reform.”

And the governor proposes to finance these new beds by issuing lease-revenue bonds. In addition to costing taxpayers more, the use of lease-revenue bonds (instead of General Obligation bonds) is a cynical maneuver to bypass the voters, who have repeatedly said that they do not favor more prison construction.

Proponents of the governor’s plan are using scare tactics. They claim that paroling some prisoners convicted of nonviolent offenses a few months early will lead to a new crime wave. In fact, Assembly Member Todd Spitzer (a rumored candidate for Orange County District Attorney) claimed on the Assembly Floor that our failure to build new prisons is hurting our state’s economy. Los Angeles, Spitzer claimed, failed to obtain the US Olympic Committee’s nomination for the 2016 Olympics because it is an out of control city beset by roving gangs. California already releases an average of 10,000 prisoners per month on parole.

California incarcerates at seven times the rate of other industrialized nations. Our state now spends more for incarceration than the amount of General Fund support it provides for the University of California and California State University systems combined. Currently, there are too few nurses, doctors, mental health professionals, prison educators or correctional officers to staff California’s prison system, let alone, support expansion. In only five years, the budget for the Department of Corrections and Rehabilitation has nearly doubled and will continue to grow until we reduce the number of people incarcerated by making more use of alternative sanctions and by providing more substance abuse treatment, education and vocational training, and mental health treatment.

We need to let our legislative leaders know that adding capacity is not the answer.

Please call Assembly Speaker Fabian and Senate President pro Tempore Don Perata and tell them that:

  • You oppose the governor’s plan to add 78,000 new prison and jail beds. The Governor’s own Independent Review Panel, chaired by former Governor George Deukmejian, said that “the key to reforming the system is to reduce the numbers.”

  • Reject the use of lease-revenue bonds. If new prison and jail beds are part of any deal, California voters deserve to have a say. Put General Obligation bonds on the ballot, as required by the California Constitution.

Assembly Speaker Fabian Nuñez

Sacramento Office

Phone: (916) 319-2046

Fax: (916) 319-2146

Los Angeles Office

Phone: (213) 620-4646

Fax: (213) 620-6319

E-mail: speaker.nunez@assembly.ca.gov

Senate President pro Tempore Don Perata

Sacramento Office

Phone: (916) 651-4009

Fax: (916) 327-1997

Oakland Office

Phone: (510) 286-1333

Fax: (510) 286-3885

E-mail: senator.perata@sen.ca.gov

Sincerely yours,

Jim Lindburg

Friends Committee on Legislation of California

717 K St., Suite 500-B

Sacramento, CA 95814

Ph: (916) 443-3734

Fax: (916) 448-6109

Donate to FCL: http://www.fclca.org/donate.html