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Commentary | PERSPECTIVE ON JUSTICE

The Inmates Haven't Changed, Prisons Have

The advent of super-max prisons has fostered the idea that prisons are faced with 'super predators.'

July 22, 1998|STEVE J. MARTIN | Steve J. Martin is a former general counsel and chief of staff to the director of the Texas prison system. Now a private attorney, he is serving as a court monitor in an excessive use of force case involving a facility at Riker's Island, New York City. He is co-author of "Texas Prisons: The Walls Came Tumbling Down" (Texas Monthly Press, 1987)

In framing a government which is to be administered by men over men," James Madison wrote, "the great difficulty lies in this: You must first enable the government to control the governed; in the next place oblige it to control itself."

As the public has become accustomed to the idea that "super predators" must be kept in "super-max prisons" in a "no frills" environment, the use of lethal force at the two California super-max prisons, Corcoran and Pelican Bay, has risen to extraordinary heights. Testimony presented in the Madrid vs. Gomez case, the 1993 trial contesting the use of force practices at Pelican Bay State Prison, provided astounding statistics on the frequency with which prison guards used lethal force. (I testified as a plaintiff's expert in the case.) The survey indicated that while seven prison systems--including the Federal Bureau of Prisons, New York and Texas--with a combined population of 250,000 inmates had only nine shots fired for all of 1990 and 1991, Pelican Bay, with an inmate population of 3,500, had more than 100 shots fired during the same period. Corcoran, in its first year of operation, had almost 50 shots fired and has recorded seven shooting fatalities from 1989 to 1995.

It is safe to say that far more inmates have been shot at, hit and killed at these two California prisons during the past nine years than at any other prison system in America for the same time period. The recent investigations and indictments involving so-called "gladiator days" at Corcoran have finally prompted some much needed scrutiny of the extraordinary levels of lethal force employed at some California prisons.

In view of this gross disparity in the use of lethal force between California's and all other American prisons, one may wonder how these other prisons control their inmates without resorting to such excessive displays of lethal force. A partial answer may be found by examining the Pelican Bay operation in the period following the Madrid trial, when the frequency of lethal force at Pelican Bay, which was designed to house what California prison officials called "the worst of the worst," dramatically declined and inmate fatalities were entirely eliminated. To my knowledge, California Department of Corrections officials have not claimed any loss of control at Pelican Bay. Nor am I aware of any general claims of loss of control in the vast majority of American prisons that limit lethal force to protect their perimeters against escape.

Several factors, some of which are peculiar to California prisons, have coalesced with national trends in penology and may begin to provide an explanation for California's extreme reliance on lethal weaponry. On a national level, the advent of super-max prisons, beginning with the control unit of the Federal Bureau of Prisons at Marion, Ill., has to some extent fostered the idea that American corrections is now faced with a new breed of criminal often referred to as "super-predators." While clearly there are imminently dangerous offenders in all maximum security prisons, I am not convinced that there has been a dramatic rise in violence in American prisons during the past 10 years. According to the U.S. Department of Justice, Bureau of Justice Statistics, the 1995 Census of State and Federal Correctional Facilities found that from 1990 to 1995, the annual number of assaults on other inmates dropped from 31 per 1,000 to 27 per 1,000, and the number of assaults on staff remained unchanged at 15 per 1,000.

Criminal justice professionals and victims' rights groups like to toss out for the public the most simplistic charges and imagery. Utilizing a term with an animalistic connotation such as "predator" establishes an almost moral imperative to deal with such inmates by employing extraordinary measures. It has not been my experience, having been involved with many maximum security prisons over a 27-year career, that there has arisen in the past decade a group of inmates that has suddenly taken on Nietzschean qualities. It is not unlike the perception that crime has increased dramatically in recent years when in fact we are in a period of declining crime rates.

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