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Appealing to Justice
Prisoner Grievances, Rights, and Carceral Logic
By Kitty Calavita, Valerie Jenness
UNIVERSITY OF CALIFORNIA PRESSCopyright © 2015 The Regents of the University of California
All rights reserved.
Rights, Captivity, and Disputing behind Bars
In 2006, James Williams lodged a grievance with the California Department of Corrections and Rehabilitation (CDCR), citing temperatures of 114 degrees in the overcrowded concrete cells of the desert prison where he was held. It was "cruel and unusual punishment," he wrote, to house people in these overheated cubicles where the only ventilation came from scorching metal vents on the roof. He ended by noting that even the prison dog kennels were air-conditioned. The CDCR denied his appeal. Tens of thousands of prisoners like Williams file grievances in California's thirty-three prisons every year, with the vast majority denied by prison authorities.
The grievance system that Williams used is the legally sanctioned internal mechanism for prisoners to contest the conditions of their confinement, and federal law requires exhaustion of this administrative process before prisoners may gain access to court. In California, the process includes multiple levels of review, all conducted exclusively by the CDCR. Perhaps we should not be surprised that Williams's grievance was denied. After all, the CDCR acts as both defendant and judge in these complaints. More surprising is the fact that despite the odds against success, prisoners' cynicism about the process, and their perception that there are risks to filing, every year thousands of prisoners like Williams do so.
This book began with the hope that the inmate grievance process might provide a window through which to glimpse daily prison life. Our unprecedented access to prisoners and CDCR officials to interview, and photocopies of hundreds of prisoner grievances, yielded an abundance of descriptive riches. Our interviews and the sample of grievances emerging from this most closed of institutions describe overheated cells but also a range of claims involving food and "chow hall" practices, medical care, staff conduct, physical safety, cell assignments, disciplinary action, visitation procedures, and the chaos of transfers and missing property. Collectively, these data provide a sense of the ordinary punctuated by the exceptional that makes up life inside prison. At a time when the U.S. prison population has increased many times over and far outstrips that of any other nation, empirical research about what happens behind prison walls has dwindled in the United States. Our focus on the prisoner grievance process and what it reveals about prison life more generally is in part driven by the simple need for discovery and description.
These prisoner grievances also shed light on the nature of disputing in an extremely hierarchical setting. They are essentially disputes, and the process they trigger is an exercise in dispute resolution, albeit one that is heavily asymmetrical in design and outcome. For California inmates, prison is a restrictive, overcrowded environment, replete with conditions that are grievable, as documented in the U.S. Supreme Court decision Brown v. Plata, 563 U.S. __ (2011). However, as we know from an extensive scholarship on disputing, the presence of grievable conditions—even serious or life-threatening ones—is not in itself sufficient for launching a dispute. Instead, the ability and willingness to name a problem, blame someone for it, and lodge a claim is socially and culturally patterned, with vulnerable or self-blaming populations facing daunting barriers. Williams's grievance and those of so many other prisoners—one of the most stigmatized and vulnerable populations imaginable—are all the more surprising in the context of this previous scholarship on the social and cultural impediments to "naming, blaming, and claiming" (Felstiner, Abel, and Sarat 1980–81).
This enigma is one of the analytical threads of our story, and making sense of it was initially the theoretical driving force of our research. But as we attempted to solve this mystery, our empirical data revealed a cascade of other puzzles. Among the most perplexing were that despite prisoners' cynicism about the appeals process and criminal justice in general, they expressed a profound faith in law and evidence; that CDCR staff praised the grievance process as an important right accorded prisoners yet referred to those who exercised that right as "narcissists" and "whiners"; and that despite a marked degree of consistency in CDCR appeals responses, with most appeals denied at all levels of review, when discussing the process of achieving this consistency, these CDCR staff reported a surprising level of conflict in the ranks.
These disparate findings, like pieces of a jigsaw puzzle with blurry images and jagged edges, only make sense when you look carefully at the bigger picture of which they are part. In broad outline, it is a picture of a late-modern society that has expanded civil and legal rights, yet deprives people of their liberty on an unprecedented scale. This "civil rights society" (Bumiller 1988) embraces the rhetoric of rights, but at the same time has taken a pronounced punitive turn that leaves approximately one in a hundred people in the United States behind bars. The logic of rights and the punitive logic of incarceration are now among the defining ideologies of American society, permeating institutions both large and small despite what appears to be their glaring incongruence.
It is often noted that the increase in incarceration in the United States came on the heels of the civil rights movement and its accompanying advances in legal rights and rights consciousness (Beckett 1997; Hagan 2010; Western 2006). Some scholars have even suggested a causal relationship, with mass incarceration serving to restore social control over racial minorities just as they had secured a measure of equal rights (Loury 2007; Murakawa 2006; Weaver 2007; Western 2006). Whatever the reasons for this sequence of events, they have set in motion a seismic tension that reverberates throughout society and is found in its most primal form in the practices that distinguish the contemporary prison.
Indeed, prisons in the United States—overcrowded with prisoners who are savvy about their legal rights, often overseen by activist courts, and guided by thick volumes of regulations—sit at the very fault line of this contradiction. As we argue in the chapters that follow, the prisoner grievance system and the puzzling attitudes and practices that surround it embody these conflicting logics of captivity and rights. What we find is a system fraught with impediments and dilemmas that delivers neither justice, nor efficiency, nor constitutional conditions of confinement. More broadly, our analysis of the prison grievance system and its inherent tensions exposes the conflicting logics underlying the prison system itself and the (post–) civil rights society into which it is inserted.
While the grievance system is a creature of this intersection of mass incarceration and rights consciousness, a close look at its operation reveals not only conflicting logics but, as with all dialectical processes, moments of coproduction and synthesis. As described in the next chapter, the mandate for an internal grievance system was established by the Prison Litigation Reform Act (PLRA) in 1996 as a solution to the growth in inmate litigation associated with the prisoners' rights movement and the increasing prison population; filing grievances is now an institutionalized part of prison life and arguably not only reflects but fuels inmates' rights consciousness. Whether or not the rights revolution of the 1960s triggered the mass incarceration of African Americans and other minorities, as some scholars argue, Congress left little doubt that the PLRA was an effort to suppress the rights litigation of the newly flooded prisons.
However, the PLRA was not only an attempt to quash prisoner litigation; it inevitably incorporated the prevailing logic of rights, requiring states to set up internal mechanisms through which prisoners could challenge the conditions of their confinement. These mechanisms may limit lawsuits and rarely end in victory for the prisoner appellant, but they serve as concrete and daily reminders to prisoners of their right to contest their treatment. In other words, the grievance system that was mandated by Congress to inhibit prisoners' rights mobilization, and which usually leaves prisoners dissatisfied with its outcomes, nonetheless may act as a galvanizing agent for rights consciousness. It is this capacity of the contradictory logics of rights and confinement not only to diverge and conflict but to meet in moments of coproduction that defines its dialectical quality.
This dialectical quality is evident too in our interviews with officials, for they alternately praised the grievance process as an important prisoner right, were openly hostile to those who exercise that right, and touted grievances as a key managerial tool that allows them to maximize safety and security. Thus, while the withdrawal of autonomy in prison and the prisoner agency implied in filing grievances may be at odds, eliciting sarcastic commentary about prisoner appellants from prison officials, these same officials hailed the system for enhancing the most immediate and tangible prison priority—safety and security.
With prison overcrowding endemic in this era of mass incarceration, a central organizing goal is safety. In their survey of mission statements of corrections departments in the United States, the Federal Bureau of Prisons, and the Correctional Service of Canada, Gaes et al. (2004, 9) report that "guaranteeing the safety of the public, staff, and inmates" is the central operating principle. Similarly, Moynihan (2005, 23) finds that the safe warehousing of people is the top priority—and sometimes the sole priority—of the three departments of corrections he examined, "regardless of the goals listed in the strategic plan."
Putting this in the context of our discussion of carceral logic, we can envision three levels of principles at work here, with their related but distinctive dynamics and dialectical relationships to rights. At the cultural level, the so-called punitive turn sits in tension with advancing rights and rights consciousness; and, at the level of the prison, the logic of incarceration includes as defining features loss of autonomy and control of movement, to which a prisoner grievance system appears antithetical (as we hear one official exclaim later, "It's no fun in prison. You came here, get over it"); but at the level of daily prison operation, the core managerial principle is to ensure safe warehousing—a challenge that officials told us is sometimes facilitated by the communication and possibility for venting implied in the grievance system.
Our story, then, is about the clashing logics embodied in the prisoner grievance system and the institutional and individual dilemmas produced by this clash. It is, however, also a story of logics that periodically converge and reproduce each other, as the vehicle with which Congress meant to limit prisoners' legal access—the internal grievance system—contributes to prisoners' rights consciousness, while officials extol inmates' right to grieve conditions as an important tool of carceral control. At the individual human level, it is a story about the lives of prisoners and corrections officials who manage this contradictory system, sometimes with similar points of view and usually with competing interests as captives and captors within the institutional space of prison.
The next sections provide a snapshot of our research context, including the contours of the CDCR as an institution, the challenges of in-prison research, and the methods and data-collection strategies we employed. After that, we trace the outlines of the dialectic of advancing rights consciousness and mass incarceration that is central to our analysis. Finally, we draw a roadmap of the book, including the main findings and arguments of each chapter.
GETTING IN, GETTING STARTED, AND GETTING ALONG: RESEARCH SITES AND DATA SOURCES
When we began this research, California was home to one of the largest correctional systems in the western world, surpassed only by the U.S. federal system. The CDCR is charged with running thirty-three prisons and at the time of this study housed approximately 160,000 people, all but about 12,000 of them in men's prisons. In addition to its mammoth size, the CDCR is by many accounts a dysfunctional organization. In 2006, U.S. District Court Judge Thelton Henderson put the California prison health care system in receivership, having found that its conditions violated the Eighth Amendment's prohibition of cruel and unusual punishment. The receiver in charge, Robert Sillen (2006, E5), described what he found when he toured the facilities at San Quentin State Prison:
To reach one of San Quentin's medical clinics, you must walk past a row of 20 maximum-security cells with inmates confined behind fine crosshatched wire, barely visible. The floor is strewn with trash, puddles of water and worse from the runoff of inmate showers from the tiers above. Soap and hair drip off the guardrails of the walkways, leaving a slippery mess to dance around as you approach the clinic, which is shoehorned into a converted cell. A mildewed shower curtain hangs in front of the clinic's entrance to keep the water from spraying directly into the medical area. I have run hospitals, clinics and public health facilities for the past 40 years, and medical care in California prisons is unlike anything I have ever seen. Inhumane is the nice term for the conditions.... The resulting patient health outcomes tell a gruesome story.
Five years later, the U.S. Supreme Court also concluded that mental and physical health care in California prisons due to overcrowding violated the Eighth Amendment, ordering California to reduce its prison population to 137.5 percent of design capacity (Brown v. Plata, 538 U.S. __ ). Reports by journalists, government agencies and academics confirm that grossly substandard health care and other deleterious conditions are common in California prisons. A wide range of special masters, independent review panels, and other experts reported that in fiscal year 2003–2004 one inmate a week died in California due to inadequate medical care (there was a seven-hundred-prisoner backlog for a doctor's appointment), and on average one California prisoner a week committed suicide (cited in Brown v. Plata, 538 U.S. __ ).
Contesting their conditions has become more complicated for prisoners since Congress passed the PLRA in 1996. This federal law contains several important provisions, but its centerpiece is a requirement for prisoners to exhaust the administrative appeals process offered by their state's correctional system before gaining access to court (Belbot 2004; Schlanger 2003). In California, inmate grievance procedures are specified in Article 8, Title 15 ("Crime Prevention and Corrections") of the California Code of Regulations. To file a grievance, prisoners are required to complete a form that is officially numbered and colloquially referred to as a "602."
The 602 provides an official venue for prisoners to narrate their complaints, attach evidence in support of their claims, and describe their requested remedies. As we detail in the next chapter, corrections officials then respond to the prisoner's claims and requests with an explanation and official determination. This back-and-forth across multiple levels of adjudication creates a kind of dialogic interaction between prisoners and officials, with the final decision resting with the CDCR's Inmate Appeals Branch in Sacramento. Our research began as an examination of this disputing in California prisons.
Despite the unprecedented growth of the incarcerated population since the early 1970s, there has been a steady decline in scholarly attention to life inside prison walls (Crewe 2005; Fleisher and Krienert 2009; Goodman 2008; Irwin 2005; Jenness 2010; Jenness et al. 2010; Rhodes 2004; Simon 2000; Wacquant 2002). The current paucity of in-prison research contrasts markedly with the era in which Donald Clemmer (1940) and Gresham Sykes (1958) did their work. This dearth of research is certainly not due to a lack of scholarly interest or because the topic has receded in importance. Rather, prison fieldwork is fraught with administrative, bureaucratic, and legal obstacles. To be blunt, prisons are heavily regulated institutional arenas, and officials usually do not welcome researchers. Further, prisoners are considered "special populations" in the language of Institutional Review Boards, making in-prison research all the more difficult. Despite these obstacles, it is critically important to get "inside and around penal facilities" (Wacquant 2002) if we are to accurately portray life inside prison walls.
We undertook this project fully cognizant of the potential challenges of access. One of the coauthors had a track record of research with the CDCR and had good working relations with some key decision makers. Yet even in this best-case scenario, the bureaucratic process of securing research permissions from the CDCR and its research office was fraught with delays, speed bumps, and mind-numbing paperwork (including, at one point, "an application to submit an application" for research). More than two years after we began—years that included multiple trips to secure endorsements from prison wardens, the Inmate Appeals Branch, and the upper echelons of the CDCR in Sacramento—we secured the coveted permissions and prison access.
Excerpted from Appealing to Justice by Kitty Calavita, Valerie Jenness. Copyright © 2015 The Regents of the University of California. Excerpted by permission of UNIVERSITY OF CALIFORNIA PRESS.
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