Out of State, Out of Mind
In 1976, Delbert Kaahanui Wakinekona was serving a life sentence in Hawaii State Prison, having been convicted in a Hawaii court. He was seen as a behavior problem in the prison. In a couple of botched hearings, prison officials decided that he was a troublemaker who had caused the "failure of certain programs" in the maximum control unit. Hawaii transferred him to Folsom Prison in California. He sued. The Supreme Court held, in 1983, that, first, a prisoner convicted of a felony has no constitutionally protected right to serve his sentence in any specific state (e.g. the one whose laws he violated). And Mr. Wakinekona had no right to have the Hawaii prison regulations applied, because they didn't really limit the State's discretion anyway.
What happened as a result?
Well, because of Olim and similar cases, two things happened. First, states and the feds, which had been told in the past that they had to follow their own rules, realized that if they just made their prison policies and regulations good and vague, or better yet nonexistent, they wouldn't have courts looking over their shoulders. So they could put a prisoner in the hole indefinitely if they called the hole "administrative segregation" instead of "segregation" and said that the prisoner was there for "the security of the institution", instead of for "assault," e.g. smacking another prisoner over the head. Added bonus: they could do it even if said prisoner didn't smack another prisoner on the head. Extra added bonus, and the subject of this diary: they could even transfer the troublemaker out of state and never have to see him or her again, if they paid enough.
I saw this policy illustrated in 1985 in the United States Penitentiary at Marion, Illinois, when I watched a four year old boy sobbing and pounding at the glass that separated him from his father. Prisoners held out of state don't have the right to conditions like those in their own states. They're subject to the rules of the state/company to which they're sent. Federal prisoners at Marion didn't get contact visits, and neither did the state prisoners held there, who were one third of the population at that time. A couple years later I represented another prisoner transferred out of state and away from his family. They couldn't afford to go visit him at all. His six year old son told his mother, "I'm going to be really, really bad, so they'll send me to be with Daddy." Good times.
At first, involuntary out of state transfers were used for people like Delbert Wakinekona, "bad guys" who were disliked for one reason or another by prison authorities. Assaultive people and gang leaders were transferred, and so were writ writers and journalists and activists and political prisoners. Authorities got another state, or the Feds, to accept their bad guys, sometimes for money, sometimes in return for accepting the other state's bad guys. So a prisoner associated with a particular prison gang, or known as a "political" or as a gay rights activist, might be plucked out and sent alone to a prison where a large group of prisoners were hostile to his gang or his beliefs. And no one at the prison could vouch for him, because no one knew him personally. Sometimes he survived. Sometimes he didn't.
But sheer dislike is no longer the main reason for involuntary transfers. There was profit to be made. Corrections Corporation of America was founded in 1983, two months before the Olim decision. It opened the first real prison for profit seven years later. But it has never been about housing "bad guys." When possible, it has gone for the easy money, and prison overcrowding (brought on in large part by the War on Drugs and three strikes laws) offered a great opportunity. Nowadays, a prisoner is more likely to be transferred if he has GOODbehavior in prison. No escape attempts, good health, plus a long sentence yet to serve are other factors that make a prisoner, literally, marketable, and may put him or her on the chain to Arizona or Minnesota or any other of the 19 states and DC where CCA has facilities.
Five years ago, the National Institute for Corrections reported that there were then about 5,000 prisoners who had been transferred out of state, half to private prisons, the other half to the federal or other state systems. Almost all those transferred to private prisons were sent there because of overcrowding. Most sent to other state systems were sent for "security" reasons. 26 states had people serving their time in other jurisdictions (but remember that some may have been voluntary transfers -- notorious defendants or convicted police or prison guards, moved for their safety).
That number has probably quadrupled or quintupled since then. California alone has more than 10,000 prisoners out of state, almost all because of overcrowding. It's getting ready to send more. In November, 2010, California entered into no-bid contracts with CCA and another company to place 5800 prisoners out of state over the next two years. Was incoming Governor Jerry Brown consulted? Not clear.
Pennsylvania shipped over 2000 prisoners to other state (not private) prisons because of overcrowding.
What will stop this banishment practice, apart from a complete rethinking and reorganization of our society?
Not the courts. At least, not directly.
(Lawyerly interlude: An argument I really like, that transfer is "banishment," forbidden by some state constitutions, has been made without success with one exception that I know of: West Virgina, whose Supreme Court held that there is a state-created right to serve your sentence in-state.)
At this point there's a lot of money invested in prisons for profit and consequently in continuing prison overcrowding. It's been my experience (YMMV) that at least since the Warren court, courts don't respond to big injustices which require big reordering of financial interests until public opinion --or overriding financial considerations -- move in favor of change.
Recognizing the importance of economic considerations, enterprising prisoners and their lawyers have done their best to inflict death by a thousand cuts. They look at the fast-diminishing groups of rights they retain by constitution or statute. One is access to the courts. Another is the right to parole consideration (if their state has parole). So they demand access to their state's laws. You'd think it would be easy for a prison system to provide this, but it's not. Or they demand access to unmonitored phone lines to call their attorney. That can almost bring some private facilities to a complete halt. They demand in-person meetings with their parole board, demand that their records be transmitted to the board, demand that they have the progress meetings with prison officials that their state's parole laws mandate. And if a prisoner learns that he may be transferred because of overcrowding, he or she can always commit an infraction. There's a cost/benefit analysis there, and you have to choose your infraction carefully, so as not to screw up access to visits.
Current budget constraints may put the squeeze on private prisons too. In 2010, Kentucky pulled its prisoners out of a CCA facility IN KENTUCKY because some genius figured out that it was too expensive. There'd been over 500 Kentucky prisoners there at one time or another. Now the Ky CCA facility only has Vermont prisoners, sent to relieve overcrowding.
Many states have transferred prisoners out of state in order to relieve overcrowding and have resisted calls to release prisoners early, even people convicted of minor crimes. But when state budgets have to be cut past the point of pain, some states are going to realize that early release is a lot less expensive than paying a huge CCA bill every month. The more people talk about this, and write to their elected officials, and visit their elected officials, the more likely it is to happen. Like economic considerations, public opinion doesn't change overnight, but it does change and it can be nudged. For example, pressure from family members, especially in smaller states, can be effective if it's sustained.
And after the deaths and mistreatment of several Hawaiian prisoners in CCA mainland prisons, Hawaiian officials are taking another look. Incoming Governor Neil Abercrombie wants to bring Hawaain out of state prisoners home. Speaking about out-of-state transfer on December 16, 2010: "It costs money. It costs lives. It costs communities," he said. "It destroys families. It is dysfunctional all the way around -- socially, economically, politically and morally."
The next day, the former Hawaii Attorney General, Micheal Lilly, who argued Olim for the state, wrote a letter to the editor of the Hawaiian Star-Advertiser. He applauded newly elected Governor Neil Abercrombie's proposal of bringing almost all Hawaiian prisoners home. He excepted only the very worst. I bet that if he were asked, he'd even concede that Delbert Wakinekona could come home. Over the years, Delbert has gotten a lot older. Now he's housed in CCA. If Red Rock Correctional Facility in Arizona can hold him, the Hawaaian prison system probably can, too.
(Second lawyerly interlude: Mr. Wakinekona has had the same lawyer who argued his case in the Supreme Court for all these years. He's trying to get his client's sentence commuted.)
As far as I could tell, in the 34 years since he was transferred, Delbert Kaahanui Wakinekona has never gone home again.