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The Buck Stops With Prison Managers

The No. 1 reform must be a ban on shootings by guards unless a life is in danger.

November 29, 1998|FRANKLIN E. ZIMRING | Franklin E. Zimring is a professor of law and director of the Earl Warren Legal Institute at UC Berkeley

During the period from 1989 to 1995, agents of the California Department of Corrections put to death two prisoners by authority of law. In both these legal executions, the lethal acts had been preceded by extensive hearings before state and federal judges. These executions were publicized and debated.

During the same six-year period, uniformed prison guards shot seven prisoners to death in a single California prison: Corcoran. Those who died in the Corcoran yards had not been sentenced to die, and their unauthorized executions did not command either judicial scrutiny or public attention for many years. Even though correctional officers at one prison killed three times as many men as the state's official execution machinery, no credible official investigation of the Corcoran shootings came until 1998. The parallels that come to mind between "disappearances" in the Argentina of the 1970s and the Corcoran shootings of the 1990s are incomplete, of course: The killings in Argentina were commanded by the government, while the killings at Corcoran were only tolerated by government.

When the Corcoran violence finally received extensive media exposure earlier this year, the Department of Corrections appointed a panel of outside law enforcement experts to review the circumstances of 31 guard shootings at Corcoran during the period 1989-95. The committee's verdict was issued last week, and it could hardly have been more damning: The experts judged 24 of the 31 shootings to be unjustified. When unbiased outside observers conclude that more than three quarters of the shootings at Corcoran were unjustified, the almost uniform absence of departmental disciplining or criminal prosecution afterward is a scandal as big as the killings and woundings.

But what kind of scandal? A one-week media event or a real opportunity to create discipline, inmate safety and the rule of law at one of California's worst prisons? What changes are needed in California's prisons? How tall an order is this?

The reforms needed in the wake of the Corcoran scandal are obvious, but they won't be easy to achieve. Reform No. 1 is a highly specific and restrictive policy on what justifies gunfire by guards. It turns out that Corcoran isn't the only shooting gallery in the California correctional system. From 1989 to 1995, there were a total of 34 shooting deaths of inmates by prison guards statewide.

As any good police chief will tell you, the best way to reduce such killings is to reduce the number of shots fired. This is because it is difficult to fine-tune the damage once bullets start flying. The clear rule that will save lives is to prohibit any shooting unless there is an imminent danger to the life of an officer or another person. Using gunfire merely to break up fights should be a career-ending mistake for a correctional peace officer.

Law enforcement executives have made progress in limiting the shots that police fire on city streets. Limiting prison guard gunshots should be easier to manage because the inmates who are the provocation don't themselves have guns, while nine out of 10 police who are killed on the street are killed by guns. The usual justification for a shooting at Corcoran was to break up a fight among inmates. Unlike imminent danger to a life, that sort of justification can be prohibited outright. So creating a rule that will cut down on shootings is not difficult. But enforcing such a rule is the critical problem.

So the second obvious need is for rigorous administrative and criminal investigation of guard violence in California prisons. The committee review findings show that the prior departmental investigations of Corcoran violence were dismal failures. It really doesn't matter much whether the administrative failure in a particular case was a screw-up or a cover-up. The investigatory system is a chronic failure, and fixing it will require changes in the governance of California prisons. The correctional peace officers' union is a powerful enemy of sanctions for guard shootings. Most of the political forces at work in the administrative process mitigate against tough sanctions.

But the local criminal process offers even less hope in prison communities. The prison guard is a valued local citizen and guards are an important political presence. Pursuing hometown guards for the criminal assault of prisoners is likely to remain a local prosecutor's lowest priority.

Prison violence is an important human rights and criminal law problem. But any real progress in California will depend more on tough management reforms than on court cases or legislation. Either the Department of Corrections will take control of guard violence in the face of substantial union opposition, or the conditions that breed violence and tolerate lawlessness will continue in California's prisons.

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