Policy brief on Prison Industrial complex

UCLA Center for the Study of Women csw.ucla.edu

2020

POLICY BRIEF SERIES RETHINKING POLICY ON GENDER, SEXUALITY, AND WOMEN’S ISSUES

Confronting the Carceral State: Reimagining Justice

ii UCLA CENTER FOR THE STUDY OF WOMEN

Reimagining Justice

Table of Contents

INTRODUCTION 3 Confronting the Carceral State: Reimagining Justice Grace Kyungwon Hong and Sarah Haley

POLICY BRIEF 28 4 Release Elderly Lifers to Reduce Mass Incarceration Jane Dorotik

POLICY BRIEF 29 8 Long-Term Incarcerated People Need Retirement Benefits Romarilyn Ralston with Ginny Oshiro and Fidelia Santos-Aminy

POLICY BRIEF 30 12 Unequal Punishment: Repealing Felony Murder Special Circumstances Joanne Scheer

POLICY BRIEF 31 16 Ensuring Access to Rehabilitative Programs and Ending Discrimination Against People Serving Life Without Parole Rosie Stockton

POLICY BRIEF 32 20 Stop “Crimmigration!” Stop Southeast Asian Refugee Deportations! June Kuoch

POLICY BRIEF 33 25 Incarceration and Mental Wellness are Incommensurable - A Call to Decarcerate Boké Saisi

CSW OVERVIEW 31

(Front cover image: Drop LWOP rally. 2018. Source: Drop LWOP Coalition.)

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This year’s policy brief competition advances the intellectual and political priorities of CSW’s Feminist Anti-Carceral Studies research stream, which centers prison abolition within feminist thought and practice.

This year, in addition to our usual process in which we select from among applications from graduate students in the University of California system, we invited system-impacted activists and organizers to contribute. We did so as to honor the bedrock prison abolitionist principle of prioritizing the analyses and perspectives of those most directly affected.

Doing so means that these policy briefs have been conceptualized and written in the service of important on-going cam- paigns. Jane Dorotik, a long-time organizer with the California Coalition for Women Prisoners (CCWP), has worked on issues related to elderly incarcerated people for years. Dorotik, who, until very recently, was incarcerated herself, details the violence, harassment, and medical neglect faced by elderly incarcerated people, and describes the structural barriers to being found suitable for parole that are specific to the elderly.

Two of the three system-impacted authors, Romarilyn Ralston and Joanne Scheer, as well as one of our graduate student authors, Rosie Stockton, are active members of the Drop LWOP coalition, and wrote their policy briefs to address some aspect of this state-wide campaign to eliminate the life without parole (LWOP) sentence. Like Dorotik, Ralston sheds light on the challenges facing those growing old behind bars, which has become an increasingly common condition as sentences like LWOP proliferate. Ralston’s brief highlights an underappreciated aspect of aging behind bars: while work is mandatory for incarcerated people, and those serving long-term sentences like life and LWOP can spend decades working behind bars, they are not eligible for Social Security for those years of labor. Stockton’s policy brief addresses an issue that became a priority for the Drop LWOP campaign at the insistence of incarcerated people and their families. Currently, those serving LWOP in California state prisons are not prioritized for self-help groups and educational programs. One of the only avenues to release for those serving LWOP is commutation by the Governor and subsequent review by the Board of Parole Hearings, both of which rely heavily on participation in such programs as a way to gauge someone’s fitness for release. Access to these programs will give those currently serving LWOP a shot at one of the very few ave- nues to release. Scheer discusses California’s felony murder rule, which provides prosecutors an avenue to seek death by execution for LWOP sentences, for those who participate in particular felonies during which a death results regardless of intention. All of these authors advocate for these policy changes as steps in the process toward eliminating the LWOP sentence altogether.

Our two other graduate student briefs likewise demonstrate how carcerality and the logics of punishment saturate all of our institutions. June Kuoch examines the intersection of criminalization and immigration policy in their focus on the deportation of Southeast Asian refugees who are convicted of crimes. Boké Saisi highlights the ways in which discourses of mental illness amongst incarcerated populations elide the effects of imprisonment on people’s psyches and advocates for the decarceration of those in mental distress.

While these briefs represent a wide range in their focus, all of them represent abolitionist feminist politics both in that they advocate an end to our current institutions based on punishment and in that they envision and enact ways of center- ing, and caring for, those caught up in such institutions.

CONFRONTING THE CARCERAL STATE: Reimagining Justice

Sarah Haley Advisory Committee Chair, UCLA Center for the Study of Women Director, UCLA Black Feminism Initiative Associate Professor, African American Studies and Gender Studies

Grace Kyungwon Hong Director, UCLA Center for the Study of Women Professor, Asian American Studies and Gender Studies

Introduction RETHINKING POLICY ON GENDER, SEXUALITY, AND WOMEN’S ISSUES

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CSW Policy Brief 28

RELEASE ELDERLY LIFERS TO REDUCE MASS INCARCERATION BY JANE DOROTIK

While the overall prison population has decreased in recent years due to judicial and legislative interventions, the num- ber of incarcerated individuals aged 50 and over has increased at an alarming rate.1, 2 Between 1980 and 2010, the general population in the United States increased by 36 percent, whereas the overall population of incarcerated peo- ple increased by over 400 percent and the number of elderly incarcerated grew at an even faster rate.3

SOURCES PROJECT that if we continue down the same path, by 2030, the elderly population of incar- cerated people (55 years and older) will be 4,400 percent greater than it was in 1981.4 Yet, this population re-offends at the lowest rate of any prison group.5 This growth in the elderly incarcer- ated population is largely due to the increase in long-term sentences. One in nine individuals in state and federal prisons in the United States are serv- ing a life sentence; in California pris- ons, that number is about one in three or 34,000 people.6 California leads the nation in the size of its lifer population due to policies and practices in the last two decades that have increased the imposition of life sentences and de- layed the granting of parole.7

Authors Mark Mauer and Ashley Nel- lis point out that long-term incarcer- ation is counterproductive to public safety.8 People “age out” of crime, and any meaningful efforts to reduce incarceration should take this into ac- count.9 Framed within a fundamental understanding of liberty and justice,

Human Rights Watch further suggests that the continued incarceration of the aging and infirm constitutes dispro- portionately severe punishment and violates human rights.10 In order to re- duce mass incarceration of the elderly, it is necessary to reduce lifers’ exces- sive prison terms in California. One of the most effective ways to do so is to change the existing elderly-parole policy and practice in order to release more elderly lifers.

As an elderly lifer who, until very re- cently, was incarcerated at the Califor- nia Institution for Women (CIW) in Chino, California, I have experienced this situation firsthand. I am 73 years old and was behind bars for almost 20 years. I was also the chair of the Long Termer’s Organization (LTO), a group for people with long-term sentences,

and the chair of the Golden Girls, an organization for elderly incarcerated people, both at CIW. Because of my 25-years-to-life sentence, I had not yet been eligible to sit before the Board of Parole Hearings (BPH) for parole con- sideration. I am lucky to be relatively healthy, but I have watched many of my peers struggle to maintain dignity as they age behind bars. I have watched my peers go before the BPH, hoping against hope to be granted their free- dom after years of incarceration. I see and feel all the fear, guilt, remorse, and tenuous hope each woman goes through when she sits before the BPH. This brief focuses on the experiences of incarcerated elderly women because that is the context with which I am most familiar, but my points are rele- vant for all elderly incarcerated people.

“California Institution for Women. State Department of Public Works, Division of Architecture, Sacramento.” 1930. Preliminary drawing of new women’s prison in Tehachapi. Design and drawing in pen and ink by Alfred Eichler. Source: Project for Department of Corrections.

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PROBLEM DESCRIPTION AND CRITIQUE

California’s policies governing in- carcerated elderly individuals are not cost-effective, nor do they advance public safety. In May 2019, CIW housed over 560 women aged 45 and up, close to 40 percent of the on-cam- pus incarcerated population.11 In Cal- ifornia state prisons, the California Department of Corrections and Reha- bilitation (CDCR) spends $81,000 on average to keep an incarcerated person behind bars.12 Research shows that el- derly incarcerated individuals cost two to three times more to keep in prison than the average incarcerated person, resulting in an astronomical $160,000 or more per person per year to keep these elderly people behind bars.13

California has had an elderly parole program in place since it was required by federal courts in February 2014.14 This federal court directive was even- tually enacted into California law (with a few exclusions), and became effective in January of 2017.15 The elderly parole process then mandated that incarcerat- ed people who are 60 years and older, and who have been incarcerated for 25 years, should be referred to the BPH for consideration for parole, regardless of their sentence. Very recently, AB 88 passed the California legislature and became effective on July 1, 2020. This bill modifies the elderly parole process by extending eligibility to those who are aged 50 and up, and have spent 20 years or more behind bars. This minor modification is still out of sync with the elderly parole policies of many oth- er states, which require only 10 years of incarceration for individuals 50 and older.16 Prior to this modification, Cal- ifornia’s very conservative process for elderly release has not been effective in actually releasing a significant number of older incarcerated people, and there

is reason to believe that the provisions of AB 88 will do little to change this fact. According to the Prison Law Of- fice, between 2014 and 2018, the pa- role suitability rate for those referred under the Elderly Parole Program was 26 percent.17 This is actually lower than the overall suitability rate, which is 34 percent.18 CDCR’s own records show that between the years 2000-2011, more California lifers convicted of murder died in prison than were re- leased on parole.19 Mortality rates for incarcerated people aged 55 and over are three times higher than for any other age group, and the vast majority of those deaths are due to age-related illnesses.20 For many lifers, then, the likelihood of dying in prison is higher than the likelihood of being released on parole.21

The average time served for released lifers remained relatively stable from the 1970s to the 1990s, and then be- gan a dramatic ascent in the 2000s. Time served for those paroled lifers averaged 12.3 years between 1984 and 2001, and then doubled to 24.3 years by 2013.22 In the vast majority of cas- es, this is not because elderly lifers are not worthy of parole or are any risk to public safety, but because of social and political factors. First, BPH commis- sioners require a performance of def- erence, humility, and remorse from the person coming before the board that punishes those who claim innocence and those who cannot provide such a performance (note that performing def- erence, humility, and remorse does not necessarily equate to feeling those senti- ments). Second, victims’ rights groups that agitate for strengthening punish- ments track BPH parole rates and put a great deal of pressure on the legisla- tive committee that reviews BPH de- nials and on the Governor. Commis- sioners are appointed by the Governor and confirmed by the California Sen-

ate, and thus their ability to keep their positions are dependent on scrutiny by these bodies.

Most lifers at CIW are incarcerated for a single crime, committed many years ago, often under the duress of do- mestic violence; many have no other criminal history. Most of these wom- en have spent their years in prison free of disciplinary infractions and working towards bettering themselves and their community. They pose little to no risk to public safety. Prison systems do not take these low-risk, high-needs incar- cerated persons into consideration. Prisons are designed for younger in- carcerated people, and security is the highest priority. The physical design of the facility, the staff training, and the rehabilitative emphasis on post-incar- ceration employment are all designed for younger incarcerated people. For instance, emergency horns (which at CIW happen up to five times daily) require that incarcerated people get down on the ground instantly, under penalty of disciplinary action. This is very challenging for the elderly.

Other challenges include transpor- tation off prison grounds which re- quires shackling, per CDCR policy. Feet are shackled together and hands are shackled to a waist chain, resulting in skin bruising and, worse, the risk of an unprotected fall while attempting to walk. For the elderly, falls can result in broken hips, fractured facial bones, and other serious internal injuries. While elderly people require medical care more frequently, the fear of be- ing injured while shackled is the main reason they refuse medical transport. Claiming that shackling is a necessary precaution against escape, CDCR re- fuses to modify this policy or allow dis- cretion in consideration of the elderly. Yet, I conducted an informal review over a recent period of three years and

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CSW Policy Brief 28

found there were 13 falls to zero es- cape attempts.

Retirement is also not an option in prison, as everyone is required to work regardless of their age. All elderly in- carcerated people struggle to find a work assignment they can physically manage. They are often ridiculed or derided by other incarcerated persons and staff. They are more likely to lose track of time, and their hearing can be compromised due to age, causing diffi- culty with following and understanding directions and orders. Elderly incarcer- ated people often isolate because of the stress of prison life and to protect themselves from younger, more ag- gressive, incarcerated people or from guards. This isolation can exacerbate loneliness and dementia.

I have watched so many of my peers struggle to maintain some kind of dig- nity as they age behind bars. The fol- lowing three glimpses exemplify the challenges of aging in prison:

GG #1 is a 73-year-old who has been behind bars for 38 years, has no pri- or criminal history, has completed approximately 30 self-help programs while incarcerated, has been disci- plinary-free for 36 years, and current- ly has a job assignment in the prison kitchen which requires lifting industri- al-size pots and pans. She recently fell on a medical visit due to shackling and is now, a month later, in a wheelchair, awaiting a comprehensive diagnostic to assess her injuries.

GG #2 is a 72-year-old who has been behind bars for 33 years on a 25-to- life sentence. She also has no prior criminal history, no disciplinary infrac- tions in 26 years, and has completed multiple self-help programs. She gets around with the help of a walker and still manages to work in the sewing

factory despite her physical limitations and serious medical problems, includ- ing undergoing open-heart surgery three years ago. She works because retirement is not permitted, and being unassigned for medical reasons means placing herself at risk for transfer up north to the other California state pris- on for women, California Correctional Women’s Facility (CCWF), in Chow- chilla. This is because policy states that everyone incarcerated at CIW must do some sort of “programming,” either work or school.

GG #3, age 65, has been incarcerat- ed for 31 years. She also had no pri- or criminal history, has had no serious rule infractions ever, and has com- pleted about 30 self-help educational and vocational programs. GG #3 has been in front of the parole board five times, and has always maintained her innocence. BPH commissioners ac- knowledge her “low risk” psychologi- cal evaluation and applaud her rehabil- itation efforts and lack of disciplinary violations. In her most recent hearing, after being told she was denied parole again, she said, “I don’t know what you want me to do or say, I truly don’t.” The commissioners had written in her denial recommendation, “Stay write- up free; participate in self-help.” These are the same boiler-plate recommenda- tions they make in many denials, rec- ommendations GG #3 has followed for years to no avail. In five years (her next opportunity for parole consider- ation), she will be 70 years old. I can guarantee she will by then have at least 35 self-help educational/vocational completions in her file. I am confident that she will continue to have no dis- ciplinary infractions. I do not know if she will finally measure up in their eyes, since they maintain she has no insight and shows no remorse because she claims innocence. I wonder if she will be yet another statistic, dying in prison

before she is found suitable for parole.

RECOMMENDATIONS

The incarcerated elderly population is cast aside, discounted, and damaged by the prison system, despite having as low as a 3 percent recidivism rate when provided appropriate reentry support.23 Multiple studies of aging in prison have made similar recommen- dations: find ways to release the elderly. In order to do so, we must:

1) change the existing elderly parole policy so that all those 50 and over who have served 10 years or more are automatically allowed parole consider- ation review.

2) mandate that the BPH prioritize risk to public safety over ambiguous and subjective factors like “insight” as criteria for release, and continue to track the parole suitability rate for this population until it reflects what all re- search shows—that this is the safest population to release.

3) diversify BPH commissioners, as the regulations require, so that they are not all people with law enforcement backgrounds.

Only with these changes will elderly in- carcerated people have any fair chance for release.

Jane Dorotik is a Regis- tered Nurse and healthcare professional who worked for many years in community mental health administration. She had been incarcerated for

almost 20 years on a wrongful conviction that she relentlessly works to overturn. She was re- cently released pending COVID-19 concerns and is fighting her case from the outside. She is a member of the California Coalition for Women Prisoners (CCWP), a current mem-

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ber of the Board of Directors of Californians United for a Responsible Budget (CURB), and a former board member of Justice Now. She also founded Compassionate Compan- ions, an organization within the California Institution for Women (CIW) that provides care and companionship for terminally ill in- carcerated people, and founded and published the CIW newsletter Strive High for eight years. She advocates for prison abolition as well as dignity and compassion for her fellow prisoners, especially those who are terminally ill.

NOTES

1. Gramlich, John, “America’s incarceration rate is at a two-decade low,” Pew Research Center, May 2, 2018, https://www.pewre- search.org/fact-tank/2018/05/02/americas- incarceration-rate-is-at-a-two-decade-low/.

2. Because of the added health burdens that come with being imprisoned, many experts agree that incarcerated people age at a rate ap- proximately 10-12 years ahead of their non-in- carcerated peers. The designation of 50 and up as “elderly” is used by the majority of studies on this population and is recommended by a 2015 Columbia University study on aging in prison. Aging in Prison: Reducing Elder Incarceration and Promoting Public Safety, Center for Justice at Columbia University, ed. Samuel K. Roberts (November 2015), https://www.issuelab.org/ resources/22902/22902.pdf.

The state of California designates those aged 55 and up as elderly. Older Inmates: The impact of an Aging Inmate Population on the Correctional System: An Internal Planning Document for the California Department of Corrections, California Department of Correc- tions, 1999.

3. At America’s Expense: The Mass Incarceration of the Elderly, American Civil Liberties Union, June 2012, i, https://www.aclu.org/report/ americas-expense-mass-incarceration-elderly.

4. At America’s Expense.

5. Hunt, Steven Kim, and Billy Easley II, The Effects of Aging on Recidivism Among Federal Of- fenders, United States Sentencing Commission, December 2017, https://www.ussc.gov/sites/ default/files/pdf/research-and-publications/

research-publications/2017/20171207_Recid- ivism-Age.pdf.

6. Mauer, Mark, and Ashley Nellis, The Mean- ing of Life: The Case for Abolishing Life Sentences (New York: The New Press, 2019).

7. Ghandnoosh, Nazgol, Delaying a Second Chance: The Declining Prospects for Parole on Life Sentences, The Sentencing Project, January 31, 2017, 14, https://www.sentencingproject.org/ publications/delaying-second-chance-declin- ing-prospects-parole-life-sentences/.

8. Mauer, Mark, and Ashley Nellis, The Mean- ing of Life: The Case for Abolishing Life Sentences (New York: The New Press, 2019).

9. TRC Staff, “Paroling Grandpa: Study Finds 3% Recidivism Rate Among Elderly Ex-In- mates,” The Crime Report, November 19, 2018, https://thecrimereport.org/2018/11/19/pa- roling-grandpa-study-finds-3-recidivism-rate- among-elderly-ex-inmates/.

10. Old Behind Bars: The Aging Prison Population in the United States, Human Rights Watch, Jan- uary 2012, 10, https://www.hrw.org/sites/ default/files/reports/usprisons0112webw- cover_0.pdf.

11. COMPSTAT DAI Statistical Report - 13 month, California Department of Corrections and Rehabilitation, July 11, 2019, 95, https:// www.cdcr.ca.gov/research/wp-content/up- loads/sites/174/2019/10/2019_05_DAI-Fe- male-Offenders.pdf ?label=Female%20Of- fenders&from=https://www.cdcr.ca.gov/ research/compstat/.

12. “How much does it cost to incarcerate an inmate? California’s Annual Cost to Incar- cerate an inmate in Prison 2018-10,” Legisla- tive Analyst’s Office, accessed May 19, 2020, https://lao.ca.gov/PolicyAreas/CJ/6_cj_in- matecost.

13. Elderly Inmates in California Prisons, Legisla- tive Analyst’s Office, May 11, 2010, https:// lao.ca.gov/handouts/crimjust/2010/Elder- ly_Inmates_05_11_10.pdf.

14. “Elderly Parole Hearings,” California De- partment of Corrections and Rehabilitation, accessed April 2, 2020, https://www.cdcr. ca.gov/bph/elderly-parole-hearings-over- view/.

15. AB-1448 Elderly Parole Program (2017- 2018), California Legislative Information,

October 12, 2017, https://leginfo.legisla- ture.ca.gov/faces/billTextClient.xhtml?bill_ id=201720180AB1448.

16. Information about Elder Parole, Prison Law Office, April 2018, https://prisonlaw.com/ w p-content/uploads/2018/04/Elder-Pa- role-April-2018.pdf.

17. Information about Elder Parole.

18. Life Support Alliance, personal email cor- respondence with the author, May 4, 2020. While CDCR claims that the overall suitability rate is only 18 percent, according to the Life Support Alliance, that rate is the percentage of grants for hearings that are scheduled. Because about half of all scheduled hearings are not held due to postponements, waivers, and other issues, the grant rate for hearings that were ac- tually held was 34 percent. Suitability Hearing Summary CY 1978-2019, California Department of Corrections and Rehabilitation, https://www.cdcr.ca.gov/ bph/2020/01/09/suitability-hearing-summa- ry-cy-1978-through-cy-2018/.

19. Ghandnoosh, Nazgol, Delaying a Second Chance: The Declining Prospects for Parole on Life Sentences, The Sentencing Project, January 31, 2017, 10, https://www.sentencingproject.org/ publications/delaying-second-chance-declin- ing-prospects-parole-life-sentences/.

20. Between 2006-2016, 52 percent of deaths in state prisons were among those aged 55 and older. Carson, E. Ann, and Mary P. Cowhig, “Mortality in State and Federal Prisons, 2001- 2016 – Statistical Tables,” US Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, February 2020, https://www. bjs.gov/content/pub/pdf/msfp0116st.pdf.

21. Ghandnoosh, Nazgol, Delaying a Second Chance: The Declining Prospects for Parole on Life Sentences, The Sentencing Project, January 31, 2017, 10, https://www.sentencingproject.org/ publications/delaying-second-chance-declin- ing-prospects-parole-life-sentences/.

22. Ghandnoosh, Nazgol, 14.

23. TRC Staff, “Paroling Grandpa: Study Finds 3% Recidivism Rate Among Elderly Ex-In- mates,” The Crime Report, November 19, 2018, https://thecrimereport.org/2018/11/19/pa- roling-grandpa-study-finds-3-recidivism-rate- among-elderly-ex-inmates/.

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LONG-TERM INCARCERATED PEOPLE NEED RETIREMENT BENEFITS BY ROMARILYN RALSTON with GINNY OSHIRO and FIDELIA SANTOS-AMINY

Most people who work for 20 or more years look forward to retirement. In fact, they have earned it! Unfortunate- ly, this is not the case for incarcerated and formerly incarcerated workers. As the number of long-term sentences in- crease in California, more and more people work for decades behind bars, only to find themselves released later in life with no Social Security benefits to show for it. A 2017 report by Ashley Nellis of the Sentencing Project notes that California has approximately 40,691 people serving life, life with- out the possibility of parole, or “vir- tual life” sentences—more than any other state.1 Lifers and people serving long-term sentences are eligible for pa- role and/or may apply to have their sentences commuted by the Governor. Even those sentenced to death—either death by execution or death by incar- ceration (i.e., life without the possibility

of parole)—are technically eligible for release via gubernatorial clemency pow- ers. During Governor Jerry Brown’s 2011-2018 term, there were 152 com- mutations and 6,412 parole grants.2 When people with indeterminate or long-term sentences are released, they may have worked for decades and be close to or above the average retirement age, but would not be eligible for Social Security benefits.

BACKGROUND AND PROBLEM DESCRIPTION

INDIVIDUALS SENTENCED to prison do not earn Social Security retirement benefits, even though they are required to work while incarcerated unless they have a medical condition that exempts them. California Penal Code Section 2700 states, “The De- partment of Corrections shall require of every able-bodied prisoner impris- oned in any state prison as many hours

of faithful labor in each day and every day during his or her term of impris- onment as shall be prescribed by the rules and regulations of the Director of Corrections.”3 This requirement also applies to those sentenced to death, with a few exceptions.4

Incarcerated people must work; it is not optional. For those serving life sentences, life without the possibility for parole, and virtual life sentences, working in prison may give meaning and purpose to their lives. It also puts a small amount of money in their pock- ets to purchase much needed personal care items and food, or help to sup- port their families. In fact, lifers and long-termers are one of the most co- operative groups in prison. They often provide mentorship and structure to other incarcerated people, and provide a constant supply of highly skilled la- bor. It is unfortunate that the skilled labor and loyalty of long-termers is so unvalued by the carceral state. Prison wages are a reminder that once a per-

Drop LWOP rally. 2018. Photograph. Source: Drop LWOP Coalition.

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son enters the corrections system, they are in essence a state-sanctioned slave.

When someone sentenced to life is granted parole, or has their prison sen- tence commuted and is released from prison, they often face close to insur- mountable barriers to finding employ- ment, housing, medical care, educa- tion, and other social services, which makes reentry difficult. Without prop- er financial stability, these returning community members may encounter challenges with rebuilding their lives or successfully completing parole.

The Social Security Administration (SSA) offers some benefits to formerly incarcerated people after release. Much of what is available supports individu- als with disabilities, and is designed to help with reentry services and apply- ing for resources such as cash benefits, health care, food, and housing.5 The SSA also states, “An individual released from incarceration may be eligible for Social Security retirement, survivors, or disability benefits if they have worked or paid into Social Security enough years. An individual released from incarceration may be eligible for Supplemental Se- curity Income benefits if they are 65 or older, are blind, or have a disability and have little or no income and resources” (empha- sis added)6. SSA’s guide, What Prisoners Need to Know, explains that Social Secu- rity pays retirement benefits to people age 62 or older who have worked and paid Social Security taxes for 10 years.7 Unfortunately, in my experience, many long-term incarcerated people are sen- tenced as juveniles or young adults, and have not paid Social Security taxes for 10 years prior to their incarcera- tion. Many have never held legitimate employment outside of the work they have done for the California Depart- ment of Corrections and Rehabilita- tion (CDCR). Prison labor may be the only work experience many incarcerat-

ed people have, and prison wages their only earned income.

While the meagerness of the wages and forced compliance distinguish work- ing behind bars from working outside prison walls, certain similarities exist. Since the CDCR requires all able-bod- ied incarcerated people to labor, they have established a compensation plan that includes a pay scale, timekeeping procedure, hourly and monthly pay schedule, and accounting procedure. Similar to hiring practices elsewhere, incarcerated people must undergo the equivalent of a job interview. They must appear before a “classification committee” at their institution of hire. They must meet a skills requirement; demonstrate a good record of behav- ior and attitude; have a history of good work habits; and be able to read, write, and speak effectively. The CDCR re- quires that “institutions/facilities shall establish an application/resume pro- cess for selection of skilled workers.”8 CDCR’s classification and hiring pro- cesses for incarcerated people thus mirrors human resources practices and procedures elsewhere.

CDCR regulations and statutory lim- itations on pay for incarcerated indi- viduals limit pay to no higher than half of the minimum wage.9 Under such authority, “pay schedules” are set by institutions/facilities, as shown above in Table 1.

In addition to the unconscionably low wages paid to incarcerated people, the prison labor system is all the more ex- ploitative because this work is not eligi- ble for Social Security benefits.

The only exception to this extreme- ly low pay scale is the CalPIA “Joint Venture Program” (JVP), established by Proposition 139 in 1991.11 A select group of incarcerated individuals at a limited number of prisons are eligible to earn minimum wage through the JVP. Among programs offered by the CDCR, the JVP comes closest to al- lowing incarcerated individuals to earn tax credits and to pay state and federal taxes.12 The JVP private industry part- nership hires incarcerated people at minimum wage in state or county fa- cilities to produce goods and services that may be sold to the public. Accord-

Table 1. Inmate Pay Rates, Schedule, and Exceptions. (Source: Barclays Official California Code of Regulations)10

CDCR Pay Rate Hourly, Min/Max Monthly, Min/Max

Level 1, DOT 9 Lead Person

Level 2, DOT 7-8 Special Skill

Level 3, DOT 5-6 Technician

Level 4, DOT 3-4 Semi-Skilled

Level 5, DOT 1-2 Laborer

$0.32 - $0.37

$0.19 - $0.32

$0.15 - $0.24

$0.11 - $0.18

$0.08 - $0.13

$48 - $56

$29 - $48

$23 - $36

$17 - $27

$12 - $20

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policies towards rehabilitation and de- carceration has triggered the release of more individuals with long-term sen- tences.

RECOMMENDATIONS

Allowing individuals who are serving long-term sentences the opportunity to earn retirement credits by applying a Social Security retirement tax to pris- on wages and other sources of income would give them a pathway toward se- curing adequate Social Security retire- ment benefits in their senior years. CDCR should increase prison wages to the state minimum wage, and allow long-term incarcerated individuals the right to claim their prison wages and other income sources (e.g. handicraft sales) as income that pays into Social Security. An existing model is provided by CalPIA’s JVP, which uses IRS “Form 1099-NEC Nonemployee Compensa- tion” to determine the taxable amount, verify earned income, and contribute to Social Security.

romarilyn ralston is the Program Director of Project Rebound at the California State Universi- ty-Fullerton (CSUF), which provides formerly incarcerat-

ed students with tools and opportunities to

ing to their website, “The Joint Venture Program (JVP) provides vocational training opportunities to inmates with- in California’s correctional settings and it offers businesses attractive benefits for employing them.”13 However, in- carcerated people sentenced to life and to life without the possibility of parole, and those sentenced to long terms, are excluded from participation in JVP. Thus, people with long-term sentences cannot participate in the sole CDCR program that pays minimum wage and contributes to Social Security.

The issue of Social Security eligibility for formerly incarcerated people has become particularly important as long- term sentencing and, subsequently, the number of parole hearings and grants have increased over the past 40 years in California. The CDCR’s Statistical Data (Table 2) shows a remarkable in- crease since 1978. In 1978, there was one parole hearing scheduled and one parole granted. In each decade that followed, parole suitability hearings in- creased by 1000 percent. For decades, the gubernatorial and legislative mis- sion of the state focused on “tough-on -crime” policies, mandatory minimum sentences, and three strikes law, which greatly increased the number of long- term and indeterminate sentences. In recent years, a shift from “no parole”

help them thrive as scholars. She is also an organizer with the California Coalition for Women Prisoners and an alumna of Califor- nia’s Women’s Policy Institute. Ralston holds a BA with honors in Gender and Feminist Studies from Pitzer College and an MA in Liberal Arts from Washington University.

Ginny oshiro is currently completing a BA in Criminal Justice (minor in Ethnic Studies) at CSUF. She currently serves as the Chief of Staff for Project Rebound and is a Women’s Policy Institute Fellow on the Criminal Justice Reform Team.

FiDelia “lia” santos-aminy has served as the Government Relations Intern for Project Rebound at CSUF. In an effort to further understand incarceration and Social Security retirement benefits, she was asked to assist in the initial research. Santos-Aminy is a substitute teacher at an elementary school in Orange County and applying to graduate schools.

NOTES 1. Virtual life sentences are terms that exceed a person’s natural life expectancy. “Still Life: America’s Increasing Use of Life and Long-term Sentences,” The Sentencing Project, accessed May 13, 2020, https://www. sentencingproject.org/publications/still-life- americas-increasing-use-life-long-term-sen- tences/.

2. Egelko, Bob, “Gov. Jerry Brown sets re- cord pardons, commutations in California,” San Francisco Chronicle, December 24, 2018, https://www.sfchronicle.com/politics/arti- cle/Gov-Jerry-Brown-sets-record-for-par- dons-13487741.php. Suitability Hearing Summary CY 1978 through CY 2019, California Department of Corrections and Rehabilitation, https://www.cdcr.ca.gov/ bph/2020/01/09/suitability-hearing-summa- ry-cy-1978-through-cy-2018/.

3. California Penal Code, Part 3, Title1, Chap- ter 5, Article 1 Employment of Prisoners Generally [2700-2717], https://leginfo.legis- lature.ca.gov/faces/codes_displaySection.xht- ml?lawCode=PEN&sectionNum=2700.

4. California Penal Code.

CSW Policy Brief 29

Table 2. CDCR Board of Parole Hearings Statistical Data. (Source: California Department of Corrections and Rehabilitation)14

Year Number of Hearings Scheduled

Number of Parole Grants

1978

1988

1998

2008

2018

1

1, 017

2, 172

6, 883

5, 226

1

28

27

293

1, 136

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5. “Benefits after Incarceration: What You Need To Know,” Social Security Administra- tion, accessed May 15, 2020, https://www.ssa. gov/reentry/benefits.htm.

6. “Benefits after Incarceration.”

7. What Prisoners Need To Know, Social Securi- ty Administration, 1, https://www.ssa.gov/ pubs/EN-05-10133.pdf.

8. Operations Manual, California Department of Corrections and Rehabilitation, Adult Institu- tions, Programs, and Parole, January 1, 2020, CDCR 2020 Departmental Manual, Hiring Criteria, Section 51120.5.1.

9. Prisoners: wages, SCR-69. California Leg- islature 2019-2020 Regular Session, https:// leginfo.legislature.ca.gov/faces/billTextClient. xhtml?bill_id=201920200SCR69.

10. Barclays Official California Code of Regu- lations, Title 15, Division 3, Chapter 1, Article 3, §3041.2, Inmate Pay Rates, Schedule and Ex- ceptions, https://govt.westlaw.com/calregs/ Document/I0EF28DA093EF11E2A237F- C86163F81CD?viewType=FullText&orig- inationContext=documenttoc&transition- Type=CategoryPageItem&contextData=(sc. Default).

11. “CALPIA - Joint Venture Program,” Cal- ifornia Business Incentives Gateway, accessed May 15, 2020, https://cbig.ca.gov/Govern- ment-Partners/CALPIA-Joint-Venture-Pro- gram.

12. Proposition 139 was codified as California Penal Code § 2717.1 et seq.

13. “CALPIA - Joint Venture Program,” Cal- ifornia Business Incentives Gateway, accessed May 15, 2020, https://cbig.ca.gov/Govern- ment-Partners/CALPIA-Joint-Venture-Pro- gram.

14. Suitability Hearing Summary CY 1978 through CY 2019, California Department of Correc- tions and Rehabilitation, https://www.cdcr. ca.gov/bph/2020/01/09/suitability-hear- ing-summary-cy-1978-through-cy-2018/.

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CSW Policy Brief 30

UNEQUAL PUNISHMENT: REPEALING FELONY MURDER SPECIAL CIRCUMSTANCES BY JOANNE SCHEER

The California penal code governing “special circumstances” pertaining to first-degree murder demands that man- datory capital punishment—that is, the death penalty or a death-in-custody sentence of life in prison without the possibility of parole (LWOP)—be imposed upon a person when a death occurs during the commission of anoth- er underlying felony, such as robbery.1 In order to convict someone of “felony murder special circumstances,” and sentence them to one of these two forms of death penalty, a prosecutor does not have to prove that someone killed inten- tionally. Furthermore, those convicted do not need to be the actual perpetrators of the killing. As long as a prosecutor can prove they were a major participant in committing one of the 13 underlying offenses, and that they acted with “reck- less indifference,” they can be convicted.

WHILE FELONY MURDER does not require a prosecutor to prove that a defendant killed anyone, intentionally or not, it can be punished more severely than first-degree murder, which requires a prosecutor to prove a defendant intentionally, willfully, and maliciously perpetrated a killing. The minimum sentence for an intentional first-degree murder is 25 years to life, while the minimum sentence for felo- ny murder special circumstances is ei- ther the death penalty or LWOP.2

This particularity of California crimi- nal law thus relegates people convict- ed of felony murder to staggeringly disproportionate sentences. It also has particularly detrimental effects on women and on transgender and gender non-conforming people. Many of the over 200 women and transgender peo- ple in California women’s prisons serv- ing LWOP were sentenced as aiders and abettors with special circumstanc-

es, including under the felony murder rule. The majority of incarcerated women and transgender people were themselves survivors of abuse, such as intimate partner violence, child abuse, sexual violence, and trafficking.3,4

The passage of California Senate Bill 1437 in 2018 has limited the condi- tions under which defendants can be convicted and subsequently sentenced as aiders and abettors in certain felony murder cases.5 However, further re- form is urgently needed to fully abol- ish felony murder special circumstanc- es and thereby ensure consistency in California sentencing law.

PROBLEM DESCRIPTION

The particularities of California’s penal code have created a situation in which those convicted of committing felony murder, whether or not the death was intentional, could suffer harsher pun- ishments than those convicted of in- tentional first-degree murder. The min- imum penalty for first-degree murder in California is 25 years to life. Howev- er, the California Penal Code contains provisions that enumerate 22 special circumstances under which those who have been convicted of first-degree murder must serve a minimum sen- tence of LWOP or the death penalty.6 All but one of these 22 provisions re- quires that the killing be intentional. The exception allows for defendants who are convicted of felony murder with special circumstances, regardless of whether they were the actual killer or whether the killing happened inten- tionally, to be sentenced to LWOP or the death penalty. Thus, those convict-

Author Joanne Scheer at a Drop LWOP rally. 2018. Photograph. Source: Drop LWOP Coalition.

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ed of intentional first-degree murder without a special circumstance can be sentenced to 25 years to life, but those convicted of felony murder with spe- cial circumstances, whether or not they intended for the death to happen, must be sentenced to LWOP or the death penalty.

While the legal theory of felony mur- der has existed for many years, origi- nating in eighteenth-century England, ballot initiatives passed in California in the last four decades have expand- ed the number of special-circum- stance crimes for felony murder, and first weakened and then removed the necessity of proving intent, thus pre- cipitously expanding the number of people convicted under felony murder.

The 1977 death penalty law made it clear that no one could be sentenced to LWOP or death for first-degree murder unless that person intended to kill the victim.7 While one who only aided another in committing a felo- ny could be convicted of first-degree murder, the 1977 law required that per- son be physically present and intend the death before special circumstanc- es could be found.8 In 1978, voters passed Proposition 7, which replaced that more specific language with the much broader and more ambiguous “intent to kill.”9 In addition, in the case of felony murder, Proposition 7 con- tained two contradictory clauses that introduced ambiguity around the ne- cessity of proving intent. One clause listed the underlying crimes that would trigger the felony-murder rule, but did not specify that intent was necessary,10 while another clause mandated that prosecutors prove intent-to-kill in fel- ony murder cases in order to convict for first-degree murder.11 This ambi- guity seems to have resulted in an in- creased number of false convictions.12

Proposition 115, The Crime Victims Justice Reform Act (passed in 1990), removed that ambiguity once and for all by making it possible to convict without proof of intent. Proposition 115 mandated that those aiders/abet- tors who acted with “reckless indif- ference to human life and as a major participant” could also be convicted of first-degree felony murder, removing the requirement of intent.13

Recent legislation has limited, but not eliminated, the basis for felony-murder convictions. SB 1437 (2018) allows a person previously convicted of sec- ond-degree felony murder (for being an accomplice under the felony-mur- der rule), or through the “natural and probable consequences” theory of law, to petition their original court of conviction for a resentencing to the underlying felony only.14 It also allows those currently undergoing trial a sim- ilar basis for challenging the charge of felony murder. Natural and probable consequences is a legal theory that asserts culpability if it can be proven that an aider/abettor could have rea- sonably foreseen that a death could occur as a direct result of the under- lying crime. Though district attorneys across California have challenged the constitutionality of SB 1437 in the courts, such cases have slowed, but not prevented, the application of the new statute. A number of petitioners have been released under the new statute, most notably Adnan Khan, the first person released under the new law and the co-founder of Re:Store Justice, the criminal justice reform organization that spearheaded SB 1437.15

As encouraging as these instances are, there is still much work to be done to eliminate the felony-murder category altogether. SB 1437 does not apply to everyone convicted of felony murder special circumstances, only those who

were prosecuted and convicted of sec- ond-degree felony murder as an aider/ abettor or under the natural and prob- able consequences doctrine. Those who were convicted of felony murder with a special circumstance as a major participant, or as acting with reckless indifference to human life; as the actu- al perpetrator of the killing; as an aid- er/abettor with the intent to kill; or if the person killed was a police officer in the performance of his or her duties, are not eligible for resentencing under SB 1437.

CRITIQUE

These felony-murder provisions lend themselves to capricious and unjust sentencing. While malice for burglary and other offenses clearly does not equal malice for murder, people are being punished as if it does. In addi- tion, the decision to charge someone with special circumstances for felony murder (rather than simply for the un- derlying felony or for felony murder without special circumstances) is at the sole discretion of the District Attor- ney, resulting in inconsistent, unequal, and potentially biased application of this lethal law.

Felony murder violates key tenets of the state’s own definition of ap- propriate punishment. In the People v Dillon (1983) decision, the California Supreme Court states that “the state must exercise its power to prescribe penalties within the limits of civilized standards and must treat its members with respect for their intrinsic worth as human beings.” It further states, “punishment which is so excessive as to transgress those limits and deny that worth cannot be tolerated.” They con- clude that a punishment may violate the California constitutional prohibi- tion “if, although not cruel or unusual in its method, it is so disproportionate

14 UCLA CENTER FOR THE STUDY OF WOMEN

certain portions of Proposition 115. Proposition 115 was written so that it could be changed by either a ballot initiative or a two-thirds majority vote in the legislature. Anticipating the dif- ficulty of garnering enough support to win a two-thirds majority vote or to win a ballot initiative, the authors of SB 1437 only changed language not directly specified in either proposition. As such, the main provisions defining felony murder special circumstances— that is, intent-to-kill or “acting with reckless indifference and as a major participant”—remain unchanged by SB 1437. We therefore recommend in- troducing legislation, passed by a two- thirds majority, to abolish sections of the California Penal Code that punish people convicted of felony murder special circumstances regardless of in- tent to kill.

Joanne scheer is the founder of the Felony Mur- der Elimination Project, a growing group of concerned citizens whose goal is the elimination of the felony

murder rule from California law. When her only child (Tony Vigeant, featured in the pic- ture with his mother) was convicted under the felony murder rule and sentenced to the death sentence of life in prison without the possibility of parole, she began the work of bringing an end to one of the most heinous of California’s laws. Striving not only to eliminate the felony murder rule, the Felony Murder Elimination Project endeavors to bring relief to those who are serving harsh and disproportionate sen- tences imposed by the rule’s application.

With nothing but the resolve to eliminate a law that so easily and unjustly sentences youth to death, she sponsored Assembly Bill 2195 in 2016, co-sponsored Senate Concurrent Resolution 48 in 2017, and co-sponsored Senate Bill 1437 in 2018, which virtually eliminated second-degree felony murder and the natural and probable consequences doc-

to the crime for which it is inflicted that it shocks the conscience and of- fends fundamental notions of human dignity.”

The United States is one of the few countries in the world to use the fel- ony-murder rule.16 Acknowledging the capriciousness and unfairness of this rule, England, its country of ori- gin, abolished the felony-murder rule in 1957.17 Various states in the Unit- ed States have also abolished the fel- ony-murder rule, including Hawaii, Kentucky, Michigan, Ohio, and New Hampshire.18

RECOMMENDATIONS

We recommend that the California Pe- nal Code be amended to abolish spe- cial circumstances penalties for felony murder, so that the criteria of prov- ing intent-to-kill is consistent with all other determinations of the charge of murder, regardless of whether or not the deaths happened during the commission of an underlying felony. This would require abolishing those sections of the California Penal Code that punish people convicted of felo- ny murder regardless of intent, that is, Penal Code sections 190.2(b), 190.2(c), and 190.2(d).19

These changes to the Penal Code could only be implemented via a ballot initiative or a two-thirds majority vote in the state legislature. Proposition 7 and Proposition 115, which estab- lished the current statutes governing felony murder special circumstanc- es, were ballot initiatives. Changes to Proposition 7 that abolish felony mur- der special circumstances altogether would require another ballot initiative. Abolishing the sections of the Penal Code that punish those convicted of felony murder special circumstances without intent-to-kill means changing

trine. She continues to fight for the elimina- tion of first-degree felony murder and special circumstances. RECOMMENDED READING

Tomkovicz, James J., “The Endurance of the Felony-Murder Rule: A Study of the Forces that Shape Our Criminal Law.” Washington and Lee Law Review 51, no. 4:8 (1994): 1429-1480.

Birdsong, Leonard, “Felony Murder: A Histor- ical Perspective by Which to Understand To- day’s Modern Felony Murder Rule Statutes.” Thurgood Marshall Law Review 30 (2006): 1-27.

NOTES

1. California Penal Code, Part 1, Title 8, Chap- ter 1, Section 190.2(a)(17) Homicide, https:// leginfo.legislature.ca.gov/faces/codes_dis- playSection.xhtml?sectionNum=190.2.&law- Code=PEN.

2. “Proposition 115: the Crime Victims Justice Reform Act, (1990),” Ballotpedia, accessed May 20, 2020, 66, https://ballotpedia.org/ California_Proposition_115,_the_%22Crime_ Victims_Justice_Reform_Act%22_(1990).

3. Zust, Barbara, “Assessing and Addressing Domestic Violence Experienced By Incarcer- ated Women,” Creative Nursing 14, no. 2 (2008): 22-24.

4. Richie, Barbara, Compelled to Crime: The Gen- der Entrapment of Battered Black Women (New York: Routledge, 1995).

5. SB1437: Accomplice liability for felony mur- der, California Legislative Information (2018), https://leginfo.legislature.ca.gov/faces/bill- TextClient.xhtml?bill_id=201720180SB1437.

6. California Penal Code, Part 1, Title 8, Chap- ter 1, Section 190.2(a)(17) Homicide, https:// leginfo.legislature.ca.gov/faces/codes_dis- playSection.xhtml?sectionNum=190.2.&law- Code=PEN.

7. Statutes of California 1977-78 Regular Session, California State Assembly, Volume 1, Chapter 316 (1977): 1255-1266, https://clerk.assem- bly.ca.gov/sites/clerk.assembly.ca.gov/files/ archive/Statutes/1977/77Vol1_Chapters.pdf.

8. Uelman, Gerald F., “Death Penalty: Blame Briggs, Not Court,” Los Angeles Times, April 22, 1986, https://www.latimes.com/archives/la-

CSW Policy Brief 30

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xpm-1986-04-22-me-1499-story.html.

9. “California Proposition 7: The Death Pen- alty Act, 1978,” Ballotpedia, accessed May 20, 2020, https://ballotpedia.org/Califor- nia_Proposition_7,_the_Death_Penalty_Act_ (1978).

10. California Penal Code, Part 1, Title 8, Chap- ter 1, Section 190.2(a)(17) Homicide, https:// leginfo.legislature.ca.gov/faces/codes_dis- playSection.xhtml?sectionNum=190.2.&law- Code=PEN.

11. California Penal Code, Part 1, Title 8, Chap- ter 1, Section 190.2(b) Homicide, https:// leginfo.legislature.ca.gov/faces/codes_dis- playSection.xhtml?sectionNum=190.2.&law- Code=PEN.

12. One legal analyst’s comparison of death penalty appeals found that special-circum- stances convictions (whether for felony mur- der or murder) that were won under the 1977 law, were upheld by the California Supreme Court 75 percent of the time, while special-cir- cumstances convictions won under the 1978 law were only upheld 25 percent of the time. Uelman, Gerald F., “Death Penalty: Blame Briggs, Not Court,” Los Angeles Times, April 22, 1986, https://www.latimes.com/archives/la- xpm-1986-04-22-me-1499-story.html.

13. “Peace Officer Hearsay Testimony Pursu- ant to the Crime Victims Justice Reform Act,” Commission on Peace Officer Standards and Training, accessed May 20, 2020, https://post. ca.gov/Proposition-115-Peace-Officer-Hear- say-Testimony-Pursuant-to-the-Crime-Vic- tims-Justice-Reform-Act.

14. SB1437: Accomplice liability for felony mur- der, California Legislative Information (2018), https://leginfo.legislature.ca.gov/faces/bill- TextClient.xhtml?bill_id=201720180SB1437.

15. McKenney, Hope, “‘My Intention Was Not To Kill: Adnan Khan First to Be Released from Prison Under New Law,” KQED News, January 25, 2019, accessed 1/31/2020, https://www. kqed.org/news/11720792/my-intentions- were-not-to-kill-adnan-khan-is-first-to-be-re- leased-from-prison-under-new-law.

16. Roth, Nelson E., and Scott Sundby, “Felo- ny Murder Rule: A Doctrine at Constitution- al Crossroads,” Cornell Law Review 70, no. 3 (March 1985): 447-8.

17. Homicide Act of 1957, Parts 5-7, UK Pub-

lic General Acts (1957), http://www.legisla- tion.gov.uk/ukpga/Eliz2/5-6/11/contents/ enacted.

18. Bonnie, R.J. et al., Criminal Law, Second Edition (New York: Foundation press, 2004): 860.

19. California Penal Code Part 1, Title 8, Chap- ter 1, Sections 190.2(b), 190.2(c), and 190.2(d) Homicide, https://leginfo.legislature.ca.gov/ faces/codes_displaySection.xhtml?section- Num=190.2.&lawCode=PEN.

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CSW Policy Brief 31

There are currently 5,100 people serv- ing Life Without Parole (LWOP) sen- tences in California,1 a number that has quadrupled in the past 20 years, despite declining violent-crime rates statewide.2 Studies have shown that LWOP, also known as “death by incarceration,’’ disproportionately impacts women and people of color.3 Of the 200 women serving LWOP, the overwhelming ma- jority are survivors of abuse, intimate partner violence, and sexual violence.4 It is well documented that in both Cal- ifornia men’s and women’s prisons, people serving LWOP are relied upon to provide leadership, mentorship, and peacekeeping within the prison popula- tion.5 They do this as leaders of self- help groups and classes, in the familial roles they play to younger incarcerated people, and through their institutional knowledge of prison policies. Despite this, they face heightened institutional discrimination and are deprioritized and excluded from the majority of self- help groups and educational classes,6 because these rehabilitative opportuni- ties require parole eligibility to enroll. Such discrimination leaves people serv- ing LWOP in a contradictory position. The nature of this sentence renders them a necessary population the pris- on depends on, while it simultaneously

excludes them from any semblance of rehabilitation.

IN THE PAST TWO YEARS, due to shifts in legislation such as California Senate Bill 1437, “Accomplice Liability for Felony Murder,” and the growing understanding of the injustice of the LWOP sentence, former California Governor Jerry Brown and current Governor Gavin Newsom have grant- ed commutation to 154 people serving LWOP,7 which makes them eligible to appear before the parole board. Given this trend of commutations, it is essen- tial that people serving LWOP have ac- cess to rehabilitative programs to pre- pare them for their parole hearings and reentry, as programming is one of the primary factors used to assess parole readiness. Moreover, having access to programming can support the mental health and overall well-being of people serving LWOP, many of whom suffer

from complex and ongoing trauma. Denying programming and access to skills development, community en- gagement, and educational opportuni- ties is essentially a statement that this community of people serving LWOP, including women who have suffered sexual assault and intimate partner abuse, is expendable. While many with LWOP convictions will not receive commutations, and therefore also not be eligible for parole hearings, that de- termination is currently a matter of executive discretion. The California Department of Corrections and Reha- bilitation (CDCR) must not abuse that discretion through discriminatory pe- nal policies and practices, which deny many incarcerated people with LWOP sentences the possibility to rehabilitate.

This policy brief recommends that leg- islators take steps to challenge discrim- ination against people serving LWOP

Posters from the a Drop LWOP rally. 2018. Photograph. Source: Drop LWOP Coalition.

ENSURING ACCESS TO REHABILITATIVE PROGRAMS AND ENDING DISCRIMINATION AGAINST PEOPLE SERVING LIFE WITHOUT PAROLE BY ROSIE STOCKTON

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by requiring that they have access to all programming within the CDCR. Such a bill should bar the CDCR from pre- venting or deprioritizing individuals designated as LWOPs, or lifers, from participating in programming based on their classification. It should ensure that more Community-Based Organi- zations (CBOs) and nonprofits could sponsor and facilitate programs with- in California prisons through a real- location of funds currently funneled towards the CDCR. Finally, it is well documented that LWOP is part of a culture of perpetual punishment in the United States that disproportion- ately targets marginalized communi- ties, especially black and brown peo- ple, and allows them to disappear into the criminal justice system. Following the path set by Governors Brown and Newsom, California should therefore have a moratorium on LWOP sentenc- ing and commute the sentences of all those already serving LWOP, allowing them to go before a parole board.

PROBLEM DESCRIPTION AND CRITIQUE

Over 40,000 people in California— more than 30 percent of people in- carcerated in the state—are serving a life sentence, and over 5,100 of these people are serving LWOP.8 LWOP sentences are a result of nationwide “tough-on-crime” policies, mandato- ry minimum sentencing, three-strike laws, and sentence enhancements. Na- tionwide, 50 percent of people serving LWOP sentences are sentenced for nonviolent crimes under the three- strikes law, a policy known to criminal- ize poor people of color.9 This trend has particularly harsh repercussions for women in California, where 90 percent of people serving LWOP in women’s prisons were sentenced un- der the felony murder aider and abet- tor sentence enhancement, indicating

they were not the main perpetrators of the crime.10 The majority of wom- en serving LWOP for violent crimes were first-time offenders and survivors of abuse, including domestic violence, childhood abuse, sexual violence, and trafficking. Troubling the “good vic- tim” / “bad criminal” binary, orga- nizations like Survived & Punished make clear that survivors of violence are prosecuted using racist, sexist, anti-trans/queer and classist logics, through policies that target poor com- munities of color.11

Discriminatory practices against peo- ple serving LWOP take place in pris- ons, both officially and unofficially. Some rehabilitative programs, such as the Long Term Offender Program (LTOP), explicitly exclude people serv- ing LWOP. This is stated in Title 15 of the California Code of Regulations,12 which offers programs such as “Cog- nitive Behavioral Treatment and other rehabilitative programs” that are cru- cial for facilitating the well-being and rehabilitation of people serving long- term sentences.13 Other programs, like the “Educational Programs,” “Inmate Activity Groups (Arts in Corrections and Innovative Programming Grants),” and “Treatment Programs,” exclude people serving LWOP for three main reasons: (1) limited enrollment capac- ity, (2) an explicit parole eligibility re- quirement, and (3) the security status of people serving LWOP prohibiting them from entering “unsecured areas” where programs are held. As noted previously, this exclusion is a result of both formal and informal practic- es that render people serving LWOP unable to access programs for the ma- jority of their lives. Meanwhile, people serving LWOP provide mentorship by facilitating many of the peer-led sup- port groups. This leaves them barred from accessing any semblance of “re- habilitation,” and at the same time, re-

sponsible for foundational aspects of social stability within the prison.

Within the limited programming cur- rently available to lifers, people in women’s prisons have even less access to reentry-preparation classes (e.g., vocational training and degree pro- grams), than people in men’s prisons.14 This is due, in part, to the startling fact that since 1980, women are being in- carcerated at a rate 50 percent higher than men nationwide.15 This leaves women’s prisons ill-equipped not only to house incarcerated people, but also to provide adequate programming. This affects women serving LWOP and long-term sentences particular- ly harshly. Because the overwhelming majority are survivors of domestic violence and sexual assault, they are unable to access support groups for domestic-violence survivors, as well as educational and job-skills programs. Additionally, transgender women held in men’s prisons are often housed in solitary confinement “for their own protection,” and therefore have more restricted access to programming than their male-identified counterparts. Ac- cording to a 2019 statewide audit of CDCR programs,16 the rehabilitation programs that women-identified pris- oners are offered are understaffed, mismanaged, and ineffective. They also show little recognition for com- plex trauma histories, hindering par- ticipants’ ability to prepare for parole and reentry, should they be eligible for that opportunity.17 Finally, due to their “high security status,” people serving LWOP also face discrimination when it comes to work assignments, and are only eligible for jobs that pay the low- est hourly amount (currently $0.08/ hour).18 They are also excluded from Prison Industry Authority jobs or Joint Venture jobs,19 while being expected to pay a high victim restitution. The financial burden of providing for their

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men’s and women’s prisons in California, remain the central fo- cus of any policy concerned with combatting discrimination against people serving LWOP due to their particularly precarious positions within the prison system.

• Move to redistribute Proposition 57 funding for CDCR to CBOs.

• Prioritize people serving LWOP as a target population for Innovative Programming Grants (IPG) and Parole Prep.

• Amend language in Title 15 of the California Code of Regulations that currently allows for the dis- crimination or deprioritization of people serving LWOP.

rosie stockton is a first-year graduate student in the Gender Studies De- partment at UCLA. Their research focuses on the role of cultural and educational pro-

gramming in anti-carceral movement building. They are a member of California Coalition of Women Prisoners (CCWP) and are cur- rently working on the Drop LWOP Cam- paign. Before moving to Los Angeles, they fa- cilitated the Writers’ Bloc poetry workshop at the Women’s Huron Correctional Facility in Michigan. This brief was written in conver- sation with the Women’s Policy Institute and the Drop LWOP Campaign, who are devel- oping legislation and messaging to advocate for programming for individuals serving LWOP, with the ultimate goal of ending long-term sentencing all together. RECOMMENDED READING

Johnson, Robert and Sandra McGuni- gall-Smith. “Life Without Parole, America’s Other Death Penalty: Notes on Life Under Sentence of Death by Incarceration.”

Mauer, Marc and Ashley Nellis. The Meaning of Life: The Case for Abolishing Life Sentences. The New Press: December 2018.

Nellis, Ashley. “Life Goes On: The Historic

to their families and communities.22 Lawmakers should look to the Trans- formative In-Prison Workgroup, a coalition of 32 CBOs that administer effective rehabilitative programming in California’s 36 state prisons, as a suc- cessful example.

Legislators should also look for op- portunities to prioritize people serving LWOP as a target population for In- novative Programming Grants (IPG) and Parole Prep. The 2019-2020 Cali- fornia state budget includes $1,000,000 per year in ongoing CDCR funding intended to support eligible nonprofit organizations in providing programs for incarcerated people that focus on personal responsibility and restorative justice principles. The 2020 grant cycle should include language that prioritiz- es people serving LWOP and Life Sen- tences, in order to ensure that they are not pushed out of rehabilitative pro- grams due to space limitations.

Finally, legislators should move to amend language in Title 15 of the California Code of Regulations that currently allows for the discrimination or deprioritization of people serving LWOP. Particular attention should be paid to language that excludes people with sentences that make them ineli- gible for parole from the Long-Term Offender Program (LTOP). Language should also be added to Title 15 to em- phasize the importance of rehabilita- tive programming for all individuals in CDCR facilities, including those cur- rently ineligible for parole.

Recommendations in brief:

• Ensure that people serving LWOP have access to rehabilitative pro- gramming for the extent of their sentences.

• Ensure that women, particularly women of color, housed at both

basic needs (e.g. hygiene products, food, and personal items) often falls on family members of incarcerated people serving LWOP. In effect, these discriminatory policies and practices “outsource” the CDCR’s responsibil- ity to meet basic survival needs, and provide rehabilitation services, to the family members of incarcerated peo- ple and to other volunteer labor.

RECOMMENDATIONS

LWOP sentences are inhumane and excessive. As such, all efforts should be made to end LWOP in California. Given that prison-reform advocates nationwide look to California as a lead- er in progressive policy change, it must be a priority for California lawmakers to ensure that people serving LWOP have access to rehabilitative program- ming for the extent of their sentences. Furthermore, lawmakers must ensure that women, particularly women of color, housed at both men’s and wom- en’s prisons in California, remain the central focus of any policy concerned with combatting discrimination against people serving LWOP due to their particularly precarious positions within the prison system.

In 2016, California passed Proposi- tion 57, which “incentivizes people in prison to take responsibility for their own rehabilitation with credit-earning opportunities for sustained good be- havior, as well as in-prison program and activities participation.”20 While these measures are indicative of prog- ress, a 2019 audit reported that CDCR has been ineffective in delivering these programs.21 Thus, legislators should move to redistribute Proposition 57 funding for CDCR to CBOs, which have proven more effective than the CDCR at providing quality, trauma-in- formed programs that prepare incar- cerated individuals to safely return

CSW Policy Brief 31

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Rise in Life Sentences in America.” The Sen- tencing Project, 2013.

Nellis, Ashley & Ryan S. King. “No Exit: The Expanding Use of Life Sentences in America.” The Sentencing Project, 2013.

Nellis, Ashley. “Throwing Away the Key: The Expansion of Life Without Parole Sentences in the United States.” The Sentencing Project, 2010.

“Life in Limbo: An Examination of Parole Re- lease for Prisoners Serving Life Sentences with the Possibility of Parole in California.” Stan- ford Criminal Justice Center, Stanford Law School (2010).

Zimring, Franklin E., and David T. Johnson. “The Dark At the Top of the Stairs: Four De- structive Influences of Capital Punishment on American Criminal Justice.” In The Oxford Handbook of Sentencing and Corrections, edited by Joan Petersilia and Kevin R. Reitz, 737-752. New York: Oxford University Press, 2012.

Hartman, Kenneth E., ed. Too Cruel, Not Un- usual Enough: An Anthology Published by The Other Death Penalty Project. The Other Death Penalty Project, 2013. (An anthology written by incar- cerate people sentenced to life-without-pa- role).

“The Truth About Life Without Parole: Con- demned to Die in Prison.” ACLU. https:// www.aclunc.org/article/truth-about-life-with- out-parole-condemned-die-prison.

NOTES

1. Offender Data Points for the 24-Month Period Ending in June 2018, California Department of Corrections and Rehabilitation, Division of Correctional Policy Research and Internal Oversight Office of Research, January 2019, https://www.cdcr.ca.gov/research/wp-con- tent/uploads/sites/174/2019/08/Data- Points_062018.pdf.

2. The Facts of Life Sentences: 1 in 7 People in Prison is Serving A Life Sentence, The Sentencing Proj- ect, December 2018, https://www.sentencing- project.org/wp-content/uploads/2018/12/ Facts-of-Life.pdf.

3. “A Living Death: Life without Parole for Nonviolent Offenses,” ACLU, November 2013, https://www.aclu.org/report/liv- ing-death-life-without-parole-nonviolent-of- fenses.

Nellis, Ashley, Life Goes On: The Historic Rise in Life Sentences in America, The Sentencing Proj- ect, September 18, 2013, https://www.sen- tencingproject.org/publications/life-goes-on- the-historic-rise-in-life-sentences-in-america/.

5. Kim, Alice, Erica R. Meiners, Audrey Petty, Jill Petty, Beth Richie, and Sarah Ross, The Long Term: Resisting Life Sentences, Working Toward Freedom, Section 1, Chapter 7 (Chicago, IL: Haymarket Books, 2018).

6. Kim, Alice, et.al., The Long Term.

7. Egelko, Bob, “Gov. Jerry Brown sets re- cord for pardons, commutations in Califor- nia,” San Francisco Chronicle, December 24, 2018, https://www.sfchronicle.com/politics/ article/Gov-Jerry-Brown-sets-record-for-par- dons-13487741.php.

8. Nellis, Ashley, Still Life: America’s Increasing Use of Life and Long-Term Sentences, The Sentencing Project, 2017, https://www.sentencingproject. org/wp-content/uploads/2017/05/Still-Life. pdf.

9. A Living Death: Life without Parole for Nonvio- lent Offenses, ACLU, November 2013, https:// www.aclu.org/report/living-death-life-with- out-parole-nonviolent-offenses.

10. This number is compiled by policy experts working with the Felony Murder Elimination Project and the DROP LWOP campaign. “DROP LWOP Fact Sheet,” DROP LWOP, https://droplwop.com/lwop-basics/.

11. “Analysis and Vision,” Survived & Pun- ished, accessed May 17, 2020. https://survive- dandpunished.org/analysis/.

12. California Code of Regulations, Ti- tle 15 Division 3 Chapter 1 Article 3 Sec- tion 3040.2 Long Term Offender Pro- gram, https://govt.westlaw.com/calregs/ Document/IB8AEBB811E484D3F8FE7 912368FEF097?viewType=FullText&orig- inationContext=documenttoc&transition- Type=CategoryPageItem&contextData=(sc. Default)&bhcp=1.

13. California Code of Regulations, Long Term Offender Program.

14. “Prisons for Women: Problems and Unmet Needs in The Contemporary Women’s Pris- on,” Law Library – American Law and Legal Information, accessed May 17, 2020, https:// law.jrank.org/pag es/1805/Prisons-Pris-

ons-Women-Problems-unmet-needs-in-con- temporary-women-s-prison.html.

15. Trends in US Corrections, The Sentencing Project, June 22, 2018, https://www.sentenc- ing project.org/publications/trends-in-u-s- corrections/.

16. Howle, Elaine M., “Several Poor Admin- istrative Practices Have Hindered Reductions in Recidivism and Denied Inmates Access to In-Prison Rehabilitation Programs,” California Department of Corrections and Rehabilita- tion, Report 2018-113, Public Letter, January 31, 2019, https://www.auditor.ca.gov/re- ports/2018-113/index.html.

17. Clark, Jared, “Inequality in prison: A psy- chologist looks at ways to reduce recidivism among women by understanding gender dif- ferences,” Monitor in Psychology 40 No. 9, Amer- ican Psychological Association, October 2009, https://www.apa.org/monitor/2009/10/re- cidivism.

18. Alice Kim et al., The Long Term.

19. Alice Kim et al., The Long Term.

20. “Proposition 57: The Public Safety and Rehabilitation Act of 2016,” California De- partment of Corrections and Rehabilitation, accessed May 17, 2020, https://www.cdcr. ca.gov/proposition57/.

21. Howle, “Several Poor Administrative Prac- tices.”

22. E.g. Transformative In-Prison Workgroup, https://www.thetpw.org/.

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CSW Policy Brief 32

The Antiterrorism and Effective Death Penalty Act (AEDPA) and the Ille- gal Immigration Reform and Immi- grant Responsibility Act (IIRIRA) of 1996 in effect criminalize populations of immigrant and refugee status. As a result of these legislative acts, com- mitting a minor criminal offense could affect a person’s immigration or refugee status long after they have served time in prison for the offense. For non-citi- zen immigrants and refugees, the im- pact of a criminal sentence might not be isolated to the punishment issued by the state, but could also result in having to live in exile or, for refugees, in “dou- ble exile.” This intersecting of criminal law and immigration law is sometimes referred to as the “crimmigration” sys- tem. As the largest resettled community in the United States, Southeast Asian immigrants and refugees are strongly impacted by “crimmigration” practices. Theirs is arguably a case of cruel and unusual punishment, where they are first punished for what they did, and then for who they are. In a sense, it is also a form of double jeopardy in that they are punished twice for one crime, first, by being incarcerated and, second, by being deported.

IN ORDER TO BREAK this inhu-mane link between the criminal jus- tice system and the immigration sys- tem, legislators should revise current policies and remove discrepancies in how pertinent criminal categories are defined, end agreements with foreign

governments that allow the United States to deport refugees to the coun- try they sought refuge from, and cre- ate systems of support for victims of “crimmigration” in their efforts not to be punished twice by being deported.

PROBLEM DESCRIPTION

Many Southeast Asians entered the the United States while fleeing the af- termath of the American War in Viet

Nam, Laos, and Cambodia. In light of this legacy, deportations of South- east Asian immigrants and refugees, in particular, reveal the socio-political complexities of “crimmigration.” Le- gal scholar Julia Stumpf states that the concept of “crimmigration” “illumi- nate[s] how and why these two areas of law [i.e., criminal law and immigra- tion law] have converged, and why that convergence may be troubling.”1 She also says, “[‘Crimmigration’] operates

“Bring my Dad Home.” Illustration for the Release the Minnesota 8 cam- paign by Tori Hong. Source: www.ToriHong.com.

STOP “CRIMMIGRATION!” STOP SOUTHEAST ASIAN REFUGEE DEPORTATIONS! BY JUNE KUOCH

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RETHINKING POLICY ON GENDER, SEXUALITY, AND WOMEN’S ISSUES

in this new area [of theory and law] to define an ever-expanding group of immigrants and ex-offenders who are denied badges of membership in soci- ety.”2 The passing of the AEDPA and the IIRIRA streamlined a process of deportation of permanent residents in the United States, and expanded the intersections of the criminal legal system and the immigration system. Through these laws, offenses catego- rized as misdemeanors in criminal law, are viewed as felonies for immigration purposes.3 Specifically, re-categorizing misdemeanors as “aggravated felo- nies” under immigration law, opened the door for mandatory detentions, deportations, and limiting immigration judges’ individual discretion in adjudi- cating.

The AEDPA and IIRIRA also allow for the retroactive detention and de- portation of non-citizens convicted of a crime. These laws retroactively re- classify Southeast Asian refugees and other immigrant groups as aggravated felons. Non-citizens who served time for lesser offenses before 1996, then, can lose their refugee or immigrant status overnight. As a result, there are currently over 17,000 Southeast Asian refugees with final orders of removal in the United States.4

Among the impacted communities, Cambodian refugees are the lon- gest-standing refugee population facing deportation from the United States. The deportation of Cambodi- ans with minor criminal records was streamlined in 2002 when the Bush Administration convinced the nation of Cambodia to sign a Memorandum of Understanding (MoU), by which Cambodia agreed to accept deportees from the United States. Prior to 2002, Cambodian non-citizens were subject- ed to indefinite detention until paper- work with Cambodia could be final-

ized, as seen in Kim Ho Ma v. Ashcroft. Kim Ho Ma was released from federal prison on good behavior on April 1, 1997, after serving a 26-month prison sentence. Upon his release, Ma was de- tained by the Immigration and Natural- ization Service (INS) in order to begin deportation proceedings to Cambodia. In Ma’s case file, his lawyers write:

…the INS has been unable to remove him, and hundreds of others like him, because Cambo- dia does not have a repatriation agreement with the United States and therefore will not permit Ma’s return. The question be- fore us is whether, in light of the absence of such an agreement, the Attorney General has the le- gal authority to hold Ma, who is now 22, in detention indefinitely, perhaps for the remainder of his life. [Kim Ho Ma v. Ashcroft]

Ma’s ninth circuit legal case chal- lenged INS practices of indefinite detention all the way to the Supreme Court. At the same time, a similar bat- tle was fought in a fifth circuit court case, Zadvydas v. Davis. As a result of this case, the INS practice of indefi- nite detention was deemed in violation of the 14th Amendment. Since then, immigrant officials must provide doc- umentation within the first 90 days of detainment to show that an individual’s deportation is possible. Unfortunately for Ma, after his release in 2001, the MoU between the United States and Cambodia was signed, giving the Unit- ed States grounds to remove him. He was deported soon thereafter.

The Obama Administration expand- ed the “crimmigration” practices set up by the Bush Administration. While President Barack Obama signed a re- patriation agreement with Viet Nam in 2008, preventing the deportation of

pre-1995 refugees, an unprecedented 3.2 million people were deported un- der his “felons, not families” depor- tation policies.5 Since the election of President Donald Trump in 2016, there have been fewer deportations overall, but a drastic increase of deportations of Cambodians to approximately 200 per year (an increase of 279 percent).6 The MoU with Viet Nam has also been reinterpreted to include detention and deportation of pre-1995 refugees, a group the agreement originally sought to protect.7 Thus far, Laos is the only nation among those affected by the American War in Southeast Asia that does not have a formal agreement with regard to deportation. However, as of 2020, the Trump administration is at- tempting to streamline a deportation process with Laos. Absent an MoU, a “gentlemen’s agreement” between Laos and the United States has al- lowed up to 40 deportations per year (a 300 percent increase).8 In total, 2,149 Southeast Asians have been deport- ed from the United States since 1998 (1,033 to Cambodia, 879 to Viet Nam, and 219 to Laos).9 Although the abso- lute numbers are relatively small, the economic and psychological impact of these deportations is strongly felt with- in the larger Southeast Asian-Ameri- can community.

“Crimmigration” practices also have a gendered component in that Southeast Asian women who are at risk of depor- tation often face compounding forms of violence. Campaigns by advocacy groups Asian Americans Advancing Justice and Survived & Punished to free Cambodian refugee Ny Nourn (#FreeNy!) illustrate this dynamic:

[When] Ny turned 18, her boy- friend killed the boss at her af- ter-school job in a fit of jealou- sy. The murder went unsolved for three years until Ny went

22 UCLA CENTER FOR THE STUDY OF WOMEN

RECOMMENDATIONS

In order to end “crimmigration,” the United States needs to stop de- taining and deporting refugees. In addition, the state needs to address the larger sociopolitical issues that underlie the “crimmigration” sys- tem by adopting abolitionist pol- icies that dismantle ICE and the prison system. To abolish ICE with- out abolishing prisons ignores the broader dynamics of “crimmigration.” The prison-industrial-complex is in- herently anti-Black, as evidenced by the disproportionate incarceration and harsher sentencing of Black people compared to other racial groups. Calls to abolish ICE without also abolishing the prison industry, then, are inher- ently anti-Black. Ignoring these con- nections obfuscates how conceptual- izations of illegality are predicated on ideologies of Black criminality. Prison abolition is not just about eliminating prisons, but involves building a world in which life is valued. Funds currently used to control and incarcerate need to be redirected to provide direct support to immigrant and refugee communi- ties, in order to change the material conditions of their lives. Policies that support access to healthcare, housing, and food are critical both for the re- entry of formerly incarcerated people, as well as for newly resettled refugees. For refugees, it is also critical to pro- vide culturally competent programs and professionals to support these ini- tiatives. We must move away from the current “prison nation”—that is, from structures of control that criminalize, dehumanize, and punish—towards structures of care.15

Grassroots community organizers have already led the charge to end the ex- pansion of immigration detention centers and to close existing pris- ons and detention facilities. This

stateless. They were born in refugee camps, not the nation-states they are “returned” to. As political scientist Khatharya Um writes, “While the idea of ‘repatriation’ is rooted in the dual concepts of ‘return to’ one’s ‘natal source,’ these embedded notions are problematized by the fact that most of the young deportees were born in cross-border refugee camps…‘return’ is, in fact, exile.”13 Their lives are root- ed in a refugee identity and legal status, not one of national belonging.

Specifically, the disjunctures within the “crimmigration” system, especially surrounding the term “aggravated fel- ony,” highlight the unconstitutionality of the 1996 immigration laws. Many deportees are transferred immediately from prison to ICE detention centers. The aforementioned case of Nourn serves as an example. She was paroled by former California Governor Jer- ry Brown. As far as the criminal legal system was concerned, then, she had served her time. Yet, instead of being allowed to reenter civil society, she was detained by immigration officials. As a result of the initial crime, the state had the right to revoke Ny’s status as Long-term Permanent Resident (LPR), and to label her a criminal alien. Under AEDPA and IIRIRA, serving a criminal sentence constitutes a basis for deportability. Thus, the deporta- tion places the individual in “double jeopardy.” The Fifth Amendment of the US Constitution prohibits an in- dividual from being punished for the same crime twice. Arguably, Nourn and other Southeast Asian refugees are punished, first, by incarceration, and then by deportation. Deportation is undeniably a form of punishment in this context.14 For refugees, who are al- ready in exile from their birth country, deportation becomes an instance of double exile, increasing the cruelty of the punishment.

to the police. After providing a confession, Ny was arrested and charged with aiding and abetting murder. A judge sentenced Ny to life without the possibility of parole.10

Nourn survived a long-term relation- ship with an abusive partner. The court, however, refused to see her as either a victim or survivor, judging her instead as a criminal, an “aggravated felon.”11 Nourn was fortunate to have the support of a community of orga- nizers who fought alongside her for her freedom. On November 9, 2017, after serving 16 years in prison and 10 months in Immigration and Customs Enforcement (ICE) detention, Nourn was released on bond. For the past three years, Nourn has been a major advocate for survivors, formerly incar- cerated people, and people impacted by deportation. She was awarded the 2018 Yuri Kochiyama Fellowship at the Asian Law Caucus, and continues to work as an anti-deportation advo- cate with the Caucus. Nourn’s case highlights how different forms of vio- lence are compounded through “crim- migration” practices. Not only did she endure the physical violence of her abuser, she was made responsible for his violence, sentenced to jail for it, served time, and was then threatened with deportation. Each step added ad- ditional trauma to that of being sub- jected to the original violence of her abuser.

CRITIQUE

The deportation of refugees is a fun- damental violation of human rights and constitutional law. Internation- al refugee law premises that refugees cannot be forcibly sent back to the country they are fleeing; this is known as “non-refoulement.”12 In addition, many of these deportees were born

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RETHINKING POLICY ON GENDER, SEXUALITY, AND WOMEN’S ISSUES

with other nations like Laos.

2) Passing policies that relieve the burden of legal expenses post-conviction: Many refugees in the “crimmigrant” system take plea deals because they lack funds to pay for criminal defense attorneys, and because they hope to exit the criminal legal system as quickly as possible (i.e., pres- sured into plea deals to avoid longer sentences). Legislators should pass policies that would provide funds and legal support for immigrants to relitigate their original convictions, as many are typically not informed of how their original criminal conviction will affect their immigrant status (Padilla v. Kentucky). In addition, prosecutors must factor in the damage of sentencing on immi- gration status and help stop ICE from flagging immigrants.16

3) Creating “Right to Return” and “Right to Reunite” pro- grams: Deportees are barred from legally entering the Unit- ed States, and as a result, friends and families are separated. Ulti- mately, deportees should have a means to reunite and return to their communities in the United States.

If you are a directly impacted South- east Asian immigrant or refugee in need of assistance, please visit: searaids.org.

June kuoch is a master’s student in the Department of Asian American Stud- ies at UCLA. They have a background in community organizing on immigration/

refugee rights, police violence, and LGBTQ+ issues. They have been involved with grass-

entails closing both private and public detention centers. Within all levels of government (federal, state, and local), policy makers have the opportunity to stop investing in the carceral system. In 2020, after an intensive grassroots campaign, Washington, Maryland, and California have all passed statewide legislation to curtail the federal expan- sion of immigrant detention centers. State lawmakers play a critical role in challenging the expansion of the pris- on system. Practical steps for state pol- icymakers to take include:

End the collaboration between the Department of Correc- tions (DOC) and ICE in order to fracture the prison-deporta- tion pipeline. The DOC has no legal obligation to report incar- cerated individuals to immigra- tion officials. Collaborating with ICE and allowing ICE to enter corrections facilities to interview and detain people is a choice. Direct transfers of incarcerated people from the DOC to ICE can be stopped by insisting that the DOC refuse to collaborate. In California, community orga- nizers have pressured Governor Gavin Newsom to get #ICEout- ofCaliforniaPrisons. Although Governor Newsom has been praised for sanctuary-esque pol- icies, they fail to give reprieve to incarcerated immigrants. The Governor, however, has the power to order ICE and the DOC to stop working together.

On the federal level, the following rec- ommendations would seek to amend the 1996 immigration laws:

1) Abolish the term “aggravat- ed felon” from immigration law. By abolishing the legal terms “aggravated felon” and “aggra-

vated felony” on a federal level, non-citizens who have served a sentence would not automatical- ly be considered for deportation by immigration officials.

2) End practices of mandato- ry detention as required in the AEDPA.

3) Give immigration judges the right to make deportation decisions at their discretion. This could decrease the number of deportations, because judg- es would have the authority to make individual rulings based on context.

On December 10, 2019, Congress in- troduced the New Way Forward Act (H.R.5383). The bill would “remove mandatory detention requirements for certain aliens, such as asylum seek- ers with a credible fear of persecu- tion,” which would directly impact the Southeast Asian community. The bill seeks to amend the 1996 immigrant laws, end private detention centers, and sever ICE’s relationship with local law enforcement. This is a positive step towards preventing “crimmigration” practices and should be supported. Additional policy changes that could provide more focused relief to the Southeast Asian community include:

1) Renegotiating MoUs: The State Department must rewrite the MoUs between Cambodia and the United States, and Viet Nam and the United States. Re- writing the MoUs could provide a legal route to halt deporta- tions. In addition, policymakers in Congress and the Depart- ment of State must prevent the United States from signing other one-sided MoUs that would for- malize deportation proceedings

24 UCLA CENTER FOR THE STUDY OF WOMEN

roots formations such as ReleaseMN8, Free- dom Inc., and the Southeast Asian Freedom Network (SEAFN).

NOTES

1. Stumpf, Julia, “The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power,” American Law Review 56, no. 2 (2006): 377.

2. Stumpf, Julia, 377-378.

3. Hing, B.O., “Deporting Cambodian Refu- gees: Justice Denied?” Crime & Delinquency 51, no. 2 (2005): 265–290.

4. Southeast Asian American Solidarity Toolkit: A Guide to Resisting Deportations and Detentions from the #ReleaseMN8 Campaign, Southeast Asian Resource Action Center (2018), https://www. searac.org/wp-content/uploads/2018/10/ MN8-Toolkit-final-online-version.pdf.

5. “Table 39. Aliens Removed or Returned: Fiscal Years 1892-2017,” US Department of Homeland Security, accessed May 19, 2020, https://www.dhs.gov/immigration-statistics/ yearbook/2017/table39.

6. Fiscal Year 2018 ICE Enforcement and Remov- al Operations Report, US Immigration Customs and Enforcement, 2018, 1-22.

7. Fiscal Year 2018 ICE Enforcement.

8. “Southeast Asian American and Asian Amer- ican Organizations Across the Country De- nounce Trump Administration’s Move to In- crease Deportations to Laos,” Southeast Asian Deportation Defense Network (February 7, 2020), accessed February 9, 2020, https:// www.searac.org/immig ration/communi- ty-alert-national-asian-american-and-south- e a s t - a s i a n - a m e r i c a n - o r g a n i z a t i o n s - d e - nounce-trump-administrations-move-to-in- crease-deportations-to-laos/.

9. “Outcomes of Deportation Proceedings in Immigration Court, 1998 to 2019,” TRAC Im- migration, through March 2020, https://trac. syr.edu/phptools/immigration/court_back- log/deport_outcome_charge.php.

10. “S&P Member, Ny Nourn, Gives TED Talk,” Survived & Punished, September 14, 2018, https://survivedandpunished. org/2018/08/20/sp-member-ny-nourn-gives- ted-talk/.

11. Riche, B., “Reimagining the Movement to End Gender Violence: Anti-racism, Prison Abolition, Women of Color Feminisms, and Other Radical Visions of Justice (Transcript),” University of Miami Race & Social Justice Law Re- view 5, no. 2 (2015): 271.

12. Southeast Asian American Solidarity Toolkit: A Guide to Resisting Deportations and Detentions from the #ReleaseMN8 Campaign, Southeast Asian Resource Action Center (2018), https://www. searac.org/wp-content/uploads/2018/10/ MN8-Toolkit-final-online-version.pdf.

13. Um, Khatharya, “Exiled Memory: History, Identity, and Remembering in Southeast Asia and Southeast Asian Diaspora,” Positions 20, no. 3 (2012): 845.

14. Hing, B.O., “Deporting Cambodian Refu- gees: Justice Denied?” Crime & Delinquency 51, no. 2 (2005): 265–290.

15. Riche, B., “Reimagining the Movement to End Gender Violence: Anti-racism, Prison Abolition, Women of Color Feminisms, and Other Radical Visions of Justice (Transcript),” University of Miami Race & Social Justice Law Re- view 5, no. 2 (2015): 268.

16. Choi, J.J., “Prosecution Policy Regarding the Consideration of Collateral Consequences in Plea Negotiations and Sentencings,” memo- randum, Office of the Ramsey County Attor- ney (Saint Paul, MN, 2019).

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RETHINKING POLICY ON GENDER, SEXUALITY, AND WOMEN’S ISSUESCSW Policy Brief 33

Legal and academic discourses about incarceration and mental unwellness, particularly in women’s prisons, often highlight the high rates of people that experience mental distress—medical- ized as mental “illness”—in both pris- ons and jails.1 Social scientific findings show that upwards of 70 percent of all incarcerated people, and 73 per- cent of incarcerated women, have a “mental illness.”2 These discourses and research findings fail to take into ac- count two interrelated factors. Firstly, the findings are premised on the tak- en-for-granted idea of “mental illness” as an inherent individual biological and

neurological pathology that can only be treated through pharmaceutical inter- vention—forced or otherwise. Second- ly, the research findings presume that incarceration itself does not contribute to mental unwellness, again implying a biologically unhealthy mind as the sole source of unwellness.

CURRENT APPROACHES to mental unwellness fail to mark incarceration as a contributing factor of distress. Without such recognition, incarcerated people will continue to stay and get increasingly unwell. I rec- ommend decarcerating incarcerated people experiencing mental distress,

that is, using legislative means to re- duce prison populations. This can be accomplished by extending the defini- tion and practice of “compassionate release” to include mental unwellness, allocating funding for communi- ty-based mental-health care outside of carceral settings (i.e., jails, prisons, and state psychiatric hospitals), averting new admissions, decreasing recidivism, and providing social support systems upon release. These recommendations need to be actualized in collaboration with formerly incarcerated people at every step.

PROBLEM DESCRIPTION

Incarceration is a detriment to mental health. The idea that normative prac- tices in prisons and jails have little bearing on incarcerated people’s men- tal health is false. For instance, both current and previous research illustrate the direct correlation between solitary confinement and experiences of dis- tress (e.g., auditory or visual halluci- nations).3 Solitary confinement is used both as punishment for the subjective violation of institutional rules and as a means of “protection from self,” de- spite evidence that shows this practice is injurious to mental health.4 More- over, social isolation from communi- ty (e.g., incarceration and psychiatric commitment), and from other individ- uals (e.g., solitary confinement—both punitive and “protective”), are detri- mental to mental health—the latter producing conditions ripe for suicidal ideation and completion.5 The imper- ative to confine those experiencing

Photograph by Elina Krima. Source: www.Pexels.com.

INCARCERATION AND MENTAL WELLNESS ARE INCOMMENSURABLE - A CALL TO DECARCERATE BY BOKÉ SAISI

26 UCLA CENTER FOR THE STUDY OF WOMEN

mental health distress, then, can be le- thal. Social movements to end the involun- tary confinement of people in state psychiatric hospitals in the mid-twenti- eth century illustrate why the contem- porary practice of incarcerating people experiencing mental distress is severely misguided. Deinstitutionalization in the 1950s and 1960s—the closure of many state psychiatric hospitals and subsequent implementation of the Community Health Act of 1963— il- lustrates why psychiatric confinement is detrimental to adequate mental healthcare.6 The subsequent disinvest- ment in community care and other social welfare policies, for example, re- sulted in houselessness and a lack of healthcare for many ex-patients, which culminated in the mass criminalization and incarceration of people experienc- ing mental distress as seen in the pres- ent. The current overrepresentation of mentally unwell people in prisons and jails is a consequence of policy failures, as well as ethical and fiscal failures to invest in community care, following mid-twentieth century deinstitution- alization. Funding allocated primarily to community mental health care will prevent this documented cycle from repeating itself.

The incongruence of adequate mental healthcare with incarceration cannot be divorced from institutional struc- tures of discrimination inherent to the criminal justice system. The past and current overrepresentation of Black, Indigenous, and other people of col- or; queer identified, low or no-income, and mentally unwell people in prisons and jails, is a direct result of histories of criminalization and pathologization of these marginalized groups.7 For ex- ample, prior to the 1865 Emancipation Proclamation, Black people were seen to be psychologically unfit for freedom,

which led to the creation of the diag- nosis of ‘drapetomania’ (desiring free- dom from enslavement), which was criminalized and violently punished. Contemporary practices of overdiag- nosing and/or wrongfully diagnosing Black people with more severe psy- chiatric labels—resulting in penal and psychiatric incarceration, and often forced medication—replicate such ra- cialized pathological diagnoses.8 Simi- larly, much of the volumes of the Di- agnostic and Statistical Manual (DSM) labelled same-gender relationships, non-normative gender expressions, and the “hypersexuality” of women as mental disorders—all practices which carried corresponding de jure and de facto punishments throughout the legal system. These fallacious pathologies have been, and continue to be, crimi- nalized and punished both within and outside of prisons and jails. While the aforementioned DSM labels have been rescinded from recent vol- umes, the criminalization of non-nor- mative gender and sexual expressions, as well as the criminalization of mental distress, still occur through the policing of these expressions by arrest, incar- ceration, and punishable “infractions” within prisons.9 The use of solitary confinement as punishment for not adhering to gender-based rules, such as “compliant” physical attire and appear- ance, speech patterns, or self-assertion, illustrates that the system is structured to violently regulate normative gender categories.10

The criminalization of mental distress can be seen through the dispropor- tionate lethal police violence towards Black and Indigenous people and oth- er people of color experiencing men- tal distress, whereby up to 50 percent of police killings involve a victim in a mental health crisis.11 Health concerns are also made punishable in prisons

where people experiencing mental dis- tress, such as engaging in self-injury, are criminalized as “committing” in- ternal “infractions” and punished by solitary confinement.12 Current poli- cies that uphold and encourage these practices illustrate the inherent con- tradiction between incarceration and effective mental health care given the context of pathologization and crim- inalization of marginalized groups of people. Policy changes, then, must: (a) pinpoint factors that produce and exacerbate mental unwellness within prisons, jails, and psychiatric hospitals; (b) recognize how structural racism, sexism, homophobia, and transphobia are replicated by current incarceration practices and psychiatric labelling; and (c) allocate funding to community care initiatives independent of state institu- tions.

CRITIQUE

Adequate mental health care within prisons, jails, and other carceral set- tings, such as state forensic hospitals, is impossible to deliver. The purpose and effect of incarceration is always punitive. While there are rights imple- mented by the Constitution’s Eighth Amendment to avoid cruel and un- usual punishment (often applied as the right of incarcerated people to receive adequate physical and mental health care), reported conditions in prisons and jails illustrate that these rights are far from upheld.13 A 2018 federally or- dered independent investigation of the California Department of Corrections and Rehabilitation’s (CDCR) lack of compliance with psychiatric care leg- islation, highlighted that the CDCR had falsified information in a federal court to produce the illusion that facil- ities complied with mental health care regulations.14 One example was the ir- regular monitoring of people placed in solitary confinement under “suicide

CSW Policy Brief 33

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RETHINKING POLICY ON GENDER, SEXUALITY, AND WOMEN’S ISSUES

institutional void, death rates in the five men’s institutions are notoriously high and thus show that the construction of penal hospitals for incarcerated women is clearly not the solution.25 This point is also evident in the successful public pressure to stop the construction of a men’s mental health treatment prison in Los Angeles County.26

Mental health care, both inside and outside of prisons and jails, does not operate in a societal vacuum. Current manifestations of institutional and structural racism, sexism, and gender and sexuality-based discrimination, in- form mental health care. Just as the le- galized criminalization and pathologi- zation of marginalized groups inform who is incarcerated, so does the con- struction and application of psychi- atric labelling. For example, as shown in an ever-growing scholarship about medical and clinical racism, tradition- al mental health care is an illustration of structural racism itself.27 Likewise, the growing body of research that shows how structural racism produc- es mental distress indicates the need for alternative modes of mental health care. Clinical practitioners often lean towards ideas of cultural competency training for mental health care work- ers as a remedy.28 However, cultural competency training—the practice of studying cross-cultural interactions in occupational settings—reinscribes notions that racism is simply individ- ual prejudice and not structured into the medical system itself. Structural medical racism can determine who re- ceives consistent care (i.e., how pain and discomfort are measured and per- ceived); which diagnostic labels are ascribed and, thus, which medications are prescribed (i.e., the overdiagnosis of schizophrenia and prescription of atypical antipsychotics for Black men); and which behaviors by which people are read as criminal versus clinical (i.e.,

amounts of violence—largely lethal— in prisons and jails, and by law enforce- ment outside.19 Experiences of phys- ical and sexual violence from prison employees and other incarcerated peo- ple, the involuntary consumption of psychiatric medication, and social iso- lation from family and community, also produce deleterious effects on mental health.20,21,22 Additionally, incarcerated people of color experience a racialized and discriminatory criminalization of mental distress, mental distress as a result of institutional oppression, and medical racism, when seeking mental health care. All three of these non-bi- ological elements contribute to mental unwellness among incarcerated people.

Accessing mental health care, particu- larly in women’s facilities, comes with many barriers. Many people incarcer- ated in women’s prisons are survivors of gender-based sexual violence.23 Incarceration itself often reproduces the traumas of sexual violation. The prevalence of male guards in women’s facilities creates an atmosphere of risk of sexual violence from guards in po- sitions of power, as do the mandated cavity searches at intake, which include “gender searches” to identify genitalia, and moves between facilities (includ- ing, and especially so, moves to men- tal health facilities).24 In this way, these commonplace practices for the incar- cerated produce and exacerbate mental unwellness, and function as a barrier to receiving even inadequate mental health care. This is done by reproducing ex- periences of sexual violence and abuse in ways that deter incarcerated people from seeking care. State psychiatric forensic hospitals replicate these gen- dered and violent practices. In Cali- fornia, its five forensic hospitals house only those classified as men. While some feminist legal and policy scholars have suggested the creation of psychi- atric prisons for women to fill such an

watch”—referred to as protective iso- lation—and resultant attempted and completed suicides at multiple facili- ties.15 Since solitary confinement and isolation are proven to produce mental distress, both the regulations and the lack of adherence to them create the conditions for attempted and complet- ed suicide. Given such recent state fal- sifications, testimonies from current- ly and formerly incarcerated people about their experiences are essential to any comprehensive recommendations about policy change. Such accounts re- veal just some of the ways practices of incarceration are harmful, and at times lethal, with regard to people’s mental health.16

Recommendations that attempt to make current structures more gender, culturally, or medically sensitive or in- clusive do not work. Much legal and academic discourse about incarcera- tion and mental health provides analyt- ically flattened accounts of incarcerat- ed peoples needs, thus not attending to issues of racism, sexism, homophobia, gender-based discrimination, ableism, and sanism—the social stigma and op- pression against mental unwellness— in prisons and jails. Any policy devoid of such an analysis is inherently faulty. For example, psychiatric discourses about women’s sexuality, same-gender relationships, non-normative gender expression, and the autonomy of ra- cialized groups, have produced patho- logical and criminalized diagnoses since the inception of psychiatry as a medical field.17 Prison officials’ insis- tence on regulating normative gender roles, gender expression, and sexuality, results in punishment for those who deviate from those norms in ways that bolster their pathologization through psychiatric means.18 Likewise, people of color, primarily Black and Indige- nous peoples, who experience mental distress are met with disproportionate

28 UCLA CENTER FOR THE STUDY OF WOMEN

health care needs to address the struc- ture of racism in the medical system and acknowledge the detrimental ef- fect that racism and other interrelated structures of discrimination have on mental health. This means that fund- ing needs to be allocated away from the criminal system (such as the California Department of Corrections and Reha- bilitation and law enforcement bodies), to independent community care initia- tives.

Community mental health care ini- tiatives have been successfully imple- mented in other states and geograph- ical contexts. For instance, the White Bird Clinic in Eugene, Oregon is a 24/7 community-run mental health facility that prioritizes care for low- or no-income and houseless people expe- riencing mental distress.38 Instead of focusing primarily on psychiatric med- ication and clinical institutionalization, the organization provides outpatient treatment; resources for housing, legal representation, and counseling; and broader healthcare. These interven- tions address many of the causes for the incarceration of people experienc- ing mental distress in the first place. Additionally, the clinic has a mobile crisis-intervention team that functions as an alternative to police interven- tion—an often fatal interaction for Black people and other people of color in distress. This preventative initiative can function as a model for alternative community-centered modes of mental health care that legislators will allocate funds to construct and support. This will require consultation with organi- zations and critical mental health care providers that center the experiences of incarcerated and formerly incarcer- ated people working through a racial, gender, and queer justice framework, to effectively address and counter medical racism and institutional dis- crimination in mental health care.

how behaviors are unequally interpret- ed based on the presumed race of a patient).29 Such problems are magni- fied during incarceration. The overrep- resentation of Black, Indigenous, and people of color in prisons and jails, and the evident need for mental health care, implicates prisons and jails as in- herently unable to provide adequate mental health care.

Concerns about the release of incarcer- ated people with mental-health strug- gles often focus on the potential acts of violence that may be perpetrated by those released. However, the presump- tion that mental unwellness inherent- ly equates to violence is a well-docu- mented myth and part of the stigma produced by mental health “diagno- ses.”30 For example, the rampant mass shootings perpetrated by white men in the US are fallaciously construed as a result of a pathology, rather than the legacy of racialized and gendered violence that has been upheld by the courts for the majority of this country’s existence. People experiencing mental distress are actually more likely to be victims of violence, whether by vigilan- tes or by police, than perpetrators.31 This victimization is largely due to the lack of social support systems, which creates the conditions for vulnerability to violence, such as houselessness and a lack of mental health care. Given that incarceration produces even more vio- lence for these vulnerable populations, decarceration through compassionate release is an apt response to the crisis of incarcerating people experiencing mental distress.

RECOMMENDATIONS

Policy recommendations that aim to provide mental health care must focus on decarceration and center the experi- ences of formerly incarcerated people.

First, this means ending solitary con- finement as a practice, whether puni- tive or “protective,” indefinitely. Soli- tary confinement constitutes cruel and unusual punishment and has been ruled so in California. The ruling resulted in the limited use of solitary confinement on incarcerated minors and those with pre-existing mental health diagno- sis.32,33 The emphasis on a pre-existing diagnosis as a determination of which incarcerated person is exempt from or receives limited solitary confinement fails to account for and address how incarceration and solitary confinement produce distress. Legislators need to extend the limited use of solitary con- finement to all incarcerated people to address this conceptual failure. For example, if an incarcerated person re- quires self-protection, such as in the context of suicide, they should be re- leased from prison.

Decarceration can be accomplished through the extension of compassion- ate release. Compassionate release is granted for severe medical or human- itarian reasons, both of which apply to those in “protective” isolation.34 Organizations that work with incarcer- ated and formerly incarcerated people need to be consistently consulted by legislators. Many organizations already participate in policy initiatives that rec- ognize the harm of incarceration it- self, including the California Coalition for Women Prisoners and Survived & Punished.35,36

Future mental health care for incarcer- ated people should center community- based mental health care, as opposed to state psychiatric holding, which is both isolating and often punitive.37 Again, isolation as it pertains to mental health care is inherently counterpro- ductive. Since Black, Indigenous, and other people of color are overrepre- sented in prisons and jails, any mental

CSW Policy Brief 33

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Boké saisi is a PhD Can- didate in the Department of Ethnic Studies and Gradu- ate Specialization in Critical Gender Studies at the Uni- versity of California, San

Diego (UCSD). She previously graduated with an MA in Ethnic Studies from UCSD and an MA in Communication and Culture from York University in Toronto, Canada. Her research interests include Black feminist thought, Indigenous and decolonial feminisms, critical gender studies, mad studies, critical disability studies, carceral studies, media stud- ies, and political economy. Her dissertation, “Barred By the Maddening State: Black and Indigenous incarceration in wom- en’s prisons in the US and Canada,” ex- amines the intersections of anti-Black racism, settler colonialism, heteropatriarchy, and sani- sm in contemporary practices of incarceration.

RECOMMENDED READING

Ansloos, Jeffrey Paul. The Medicine of Peace: In- digenous Youth Decolonizing Healing and Resisting Violence. Halifax: Fernwood Publishing, 2017.

Ansloos, Jeffrey. “Rethinking Indigenous Sui- cide.” International Journal of Indigenous Health 13, no. 2 (2018): 8-28.

Egelko, B. “California prisons’ use of soli- tary confinement violates court settlement.” San Francisco Chronicle, January 28, 2019. https://www.sfchronicle.com/news/article/ California-prisons-use-of-solitary-confine- ment-13568616.php .

Gilmore, Ruth Wilson. Golden Gulag: Prisons, Surplus, Crisis, and Opposition in Globalizing Cali- fornia. Berkeley: University of California Press, 2007.

Meerai, Sonia, Idil Abdillahi, and Jennifer Poole. “An Introduction to Anti-Black Sani- sm.” Intersectionalities: A Global Journal of Social Work Analysis, Research, Polity, and Practice 5, no. 3 (December 29, 2016).

Mills, China. Decolonizing Global Mental Health: The Psychiatrization of the Majority World. Hove: Routledge, 2014.

Mogul, Joey L., Andrea J. Ritchie, and Kay

Whitlock. Queer (in)Justice: The Criminalization of LGBT People in the United States. Boston, Mass: Beacon, 2012.

Richie, Beth. Arrested Justice: Black Women, Vi- olence, and America’s Prison Nation. New York: New York University Press, 2012.

Roberts, Dorothy E. Killing the Black Body: Race, Reproduction, and the Meaning of Liberty. New York: Pantheon Books, 1997.

Thuma, Emily. “Against the Prison/Psychi- atric State: Anti-violence Feminisms and the Politics of Confinement in the 1970s.” Feminist Formations 26, no. 2 (2014): 26-51.

Washington, Harriet A. Medical Apartheid: The Dark History of Medical Experimentation on Black Americans from Colonial Times to the Present. Washington: Paw Prints, 2010.

NOTES

1. I use the term “unwellness” to indicate the health-based reality of mental distress without reproducing pathologizing language such as “illness” and “disorder.”

2. Rembis, Michael, “The New Asylums: Mad- ness and Mass Incarceration in the Neoliberal Era,” in Disability Incarcerated: Imprisonment and Disability in the United States and Canada, eds. Liat Ben-Moshe, Chris Chapman, and Allison Carey (London: Palgrave, 2014), 146.

3. Casella, Jean, James Ridgeway, and Sarah Shourd, Hell Is a Very Small Place: Voices from Solitary Confinement (New York: New Press, 2018). Esposito, Barbara, Lee Wood, and Kathryn Bradsley, Prison Slavery (Washington, D.C: Committee to Abolish Prison Slavery, 1982), 53. The testimony of APA member Craig Haney, PhD, delivered to the Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights: Hear- ing on Solitary Confinement, Committee on the Ju- diciary, June 19, 2012, https://www.judiciary. senate.gov/imo/media/doc/12-6-19Haney- Testimony.pdf.

4. Casella, Hell Is a Very Small Place; Esposito, Prison Slavery; The testimony of APA member Craig Haney.

5. Preventing Suicide, a Global Imperative, World Health Organization, 2014, https://www.who. int/mental_health/suicide-prevention/world_ report_2014/en/.

6. Metzl, Jonathan M., The Protest Psychosis: How Schizophrenia Became a Black Disease (Boston, Mass: Beacon Press, 2014), 135.

7. Kajstura, Aleks, “Women’s Mass Incarcer- ation: The Whole Pie, 2019,” Prison Policy Initiative, October 29, 2019, https://www.prisonpolicy. org/reports/pie2019women.html.

8. Metzl, Jonathan M., The Protest Psychosis: How Schizophrenia Became a Black Disease (Boston, Mass: Beacon Press, 2014), xvii.

9. Girshick, Lori, “Out of compliance: Mascu- line identified people in women’s prisons,” in Captive Genders: Trans Embodiment and the Prison Industrial Complex, eds. Eric A. Stanley and Nat Smith (Edinburgh: AK Press, 2016). Spade, Dean, “Administrating Gender,” in Normal Life: Administrative Violence, Critical Trans Politics, and the Limits of Law, (Brooklyn, NY: South End Press, 2011).

10. Girschick, “Out of Compliance,” 199.

11. Ritchie, Andrea J., Invisible No More: Police Violence against Black Women and Women of Color (Boston: Beacon Press, 2017), 88.

12. Black, Alexander, Kylie Davis, Kenneth Gray, Connor O’Shea, Alexander Scheuer, Sa- mantha Walther, and Nico Yardas, The Treat- ment of People with Mental Illness in the Criminal Justice System: The Example of Oneida County, New York, Levitt Center for Public Affairs, Ham- ilton College, 2019, https://digitalcommons. hamilton.edu/student_scholarship/6/. Perlin, Michael L., The Hidden Prejudice: Mental Disability on Trial, American Psychological As- sociation, 2000.

13. Klein, Stuart, “Prisoners’ Rights to Phys- ical and Mental Health Care: A Modern Ex- pansion of the Eight Amendment’s Cruel and Unusual Punishment Clause,” 7 Fordham Urb. L.J. 1 (1979), https://ir.lawnet.fordham.edu/ ulj/vol7/iss1/1.

14. Horn, Steve, “California Prison Psychia- trists Blow Whistle on Poor Mental Health- care, Falsified Records,” Prison Legal News, April 2, 2019, https://www.prisonlegalnews. org/news/2019/apr/2/california-prison-psy- chiatrists-blow-whistle-poor-mental-health- care-falsified-records/.

15. Horn, “California Prison Psychiatrists Blow Whistle.”

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CSW Policy Brief 33

16. Pfeiffer, Mary Beth, “A Death in the Box,” The New York Times, October 31, 2004, https:// www.nytimes.com/2004/10/31/magazine/a- death-in-the-box.html. “Voices from Solitary: Disciplined into mad- ness and death,” Solitary Watch, February 18, 2013, https://solitarywatch.org/2013/02/18/ voices-from-solitary-disciplined-into-mad- ness-and-death/. Casella, Jean, James Ridgeway, and Sarah Shourd, Hell Is a Very Small Place: Voices from Solitary Confinement (New York: New Press, 2018).

17. Yanni, Carla, The Architecture of Madness: In- sane Asylums in the United States (Minneapolis: University of Minnesota Press, 2007). Chesler, Phyllis, Women and Madness: Revised and Updated (Chicago: Chicago Review Press, 2005). Rothman, David J., The Discovery of the Asy- lum: Social Order and Disorder in the New Republic (London: Routledge, 2017). Ritchie, Andrea J., Invisible No More: Police Vi- olence against Black Women and Women of Color (Boston: Beacon Press, 2017), 88-103.

18. Stanley, Eric A., and Nat Smith, Captive Genders: Trans Embodiment and the Prison Industri- al Complex (Edinburgh: AK Press, 2016). Thuma, Emily L., All Our Trials: Prisons, Polic- ing, and the Feminist Fight to End Violence (Urba- na: University of Illinois Press, 2019).

19. Ritchie, Andrea J., Invisible No More: Police Violence against Black Women and Women of Color (Boston: Beacon Press, 2017), 88-103.

20. Hatch, Anthony Ryan, Silent Cells: The Secret Drugging of Captive America (Minneapolis: Uni- versity of Minnesota Press, 2019).

21. Dirks, Danielle, “Sexual Revictimization and Retraumatization of Women in Prison,” Women’s Studies Quarterly 32, no. 3/4 (2004): 102- 15, http://www.jstor.org/stable/40004582.

22. Ware, Syrus, Joan Ruzsa and Giselle Dias, “It Can’t Be Fixed Because It’s Not Broken: Racism and Disability in the Prison Industrial Complex,” in Disability Incarcerated: Imprisonment and Disability in the United States and Canada, eds. Liat Ben-Moshe, Chris Chapman and Allison Carey (London: Palgrave, 2014).

23. Dirks, Danielle, “Sexual Revictimization and Retraumatization of Women in Prison,” Women’s Studies Quarterly 32, no. 3/4 (2004): 102- 15, http://www.jstor.org/stable/40004582.

24. Dirks, “Sexual Revictimization.” Girshick, Lori, “Out of compliance: Mascu- line identified people in women’s prisons,” in Captive Genders: Trans Embodiment and the Prison Industrial Complex, eds. Eric A. Stanley and Nat Smith (Edinburgh: AK Press, 2016), 203.

25. Terwiel, Anna, “What Is Carcer- al Feminism?” Political Theory, 2019, h t t p s : / / j o u r n a l s . s a g e p u b . c o m / d o i / abs/10.1177/0090591719889946.

26. Pino, Francisco Aviles, “Los Angeles County Votes to Stop Construction of New Jail-like Facility, Adding Momentum to Na- tional Abolition Movement,” The Intercept (August 22, 2019), https://theintercept. com/2019/08/22/los-angeles-county-men- tal-health-facility-abolition/.

27. Hoberman, John M., Black and Blue: The Or- igins and Consequences of Medical Racism (Berke- ley: University of California Press, 2016).

28. Metzl, Jonathan M., The Protest Psychosis: How Schizophrenia Became a Black Disease (Bos- ton, Mass: Beacon Press, 2014), 201.

29. Metzl, The Protest Psychosis.

30. Dvoskin, Joel, “Speaking of Psychology: Dispelling the myth of violence and mental illness,” audio recording, American Psycholog- ical Association, 2020, https://www.apa.org/ research/action/speaking-of-psychology/dis- pelling-myth.

31. Choe, JY, LA Teplin, and KM Abram, “Perpetration of violence, violent victimiza- tion, and severe mental illness: balancing pub- lic health concerns,” Psychiatric Services, 59, no. 2 (2008):153–164.

32. S.329 - MERCY Act, 115th Congress (2017-2018), Congress.Gov, 2020, https:// www.congress.gov/bill/115th-congress/sen- ate-bill/329/text.

33. Kelley, Alexandra, “California Jails Scale Back Solitary Confinement,” The Hill, Dec 27, 2019, https://thehill.com/changing-america/ well-being/mental-health/476067-califor- nia-jails-scale-back-solitary-confinement.

34. “Compassionate Release/Reduction of Sentence: Procedures for Implementa- tion of 18 USC 3582(c)(A) and 4205(g),” National Institute of Corrections, 2019, https://nicic.gov/compassionate-releasere- duction-sentence-procedures-implementa-

tion-18-usc-3582ca-and-4205g.

35. California Coalition of Women Prisoners, https://womenprisoners.org/about-us/.

36. Survived & Punished, https://survivedan- dpunished.org/about/.

37. White Bird Clinic, 2019, https://white- birdclinic.org/about/.

38. White Bird Clinic.

31WWW.CSW.UCLA.EDU

RETHINKING POLICY ON GENDER, SEXUALITY, AND WOMEN’S ISSUESCSW Overview

Through our foundational research on women and gender equality, the UCLA Center for the Study of Women (CSW) works toward a world in which education and scholarship are tools for

social justice feminism, improving the lives of people of all genders.

OUR CURRENT RESEARCH STREAMS:

BLACK FEMINISM INITIATIVE The CSW Black Feminism Initiative (BFI) was established in Fall 2019 to honor and encourage Black feminist thought and visions for political transformation. BFI supports interdisciplinary research and social engagements that are grounded in Black feminist and Black queer frameworks of analysis, challenges state and interpersonal violence, considers intramural forms of relation, and engages everyday forms of refusal, Black feminist assembly, and collective organizing practice. BFI also highlights questions of social reproduction and reproductive justice, contemporary and historical regimes of captivity and carcerality, and Black feminist art and expressive culture.

CHEMICAL ENTANGLEMENTS Exposure to environmental toxicants and endocrine-disrupting chemicals have been proven to have negative impacts on human reproductive health. The Chemical Entanglements initiative engages activists, policymakers, physicians, and community members in efforts to develop new tools and strategies that will help identify the gendered impacts of environmental toxicants and reduce the harm that toxic exposure can cause to the health of people of all genders.

FEMINIST ANTI-CARCERAL STUDIES The number of women in US prisons increased by an unprecedented 757 percent between 1977 and 2004, and these high rates of incarceration damage marginalized communities. CSW is gathering scholars and activists to advocate for incarcerated women and to work towards true justice by developing feminist alternatives to incarceration.

GENDER AND WATER Gender shapes the way we use water: water-heavy activities like housecleaning, yard work, etc. often get divided by family members along gendered lines. In addition, women are at the forefront of water activism, from Standing Rock to Flint, MI. By asking new questions about how gender shapes water use, we are developing new strategies for conservation education in the wake of climate change.

SEXUAL VIOLENCE AND INTERSECTIONALITY Gender-based discrimination and sexual assault continue to block women from full access to educational opportunity, and current punishment-based interventions fail to address the ways that experiences of sexual violence are shaped by race and class. CSW’s research will result in new, anti-carceral solutions to this problem, empowering victims of violence at all levels of the education system.

To learn more about CSW’s Research, visit csw.ucla.edu/cswresearch.

UCLA CENTER FOR THE STUDY OF WOMEN

CSW Policy Briefs

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EDITOR: Katja Antoine, CSW Program and Research Developer

UCLA CENTER FOR THE STUDY OF WOMEN 1500 Public Affairs Building • Los Angeles, CA 90095-7222

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DIRECTOR: Grace Kyungwon Hong

RETHINKING POLICY ON GENDER, SEXUALITY, AND WOMEN’S ISSUES