John Hagar, the Special Master assigned by the U.S. District Court (N.D. Cal.) to monitor the California Department of Corrections and Rehabilitation’s (CDCR) staff investigations and disciplinary process has opined, in an October 2007 Final Report to the court, that monitoring should be continued because CDCR could not be relied upon to not fall back into its “code of silence” ways.

The long-running court battle with CDCR began in 1990 at Pelican Bay State Prison, a supermax facility, with complaints of unconstitutional disciplinary treatment and a “code of silence” that suppressed the truth in investigations into staff misconduct. Now, the Special Master to the federal court that imposed oversight and ordered a remedial plan has made his final report on the status of his monitoring efforts.

Hagar made findings as to staffing levels of the remedial action team, the management of investigations regarding staff discipline, and the ability to communicate and work with CDCR staff alongside the state’s oversight organizations (the Inspector General, Bureau of Independent Review [BIR], Office of Internal Affairs, and Employment Advocacy Prosecution Team). Hagar then discussed his concerns as to whether the progress that had been begrudgingly made “under the gun” of the court over the past 17 years would continue if oversight were ended.

Before the court’s remedial orders could be effectuated, it was necessary to adequately staff the oversight organizations. Hagar noted that he had required major upheavals of existing employment structures (such as salary increases/benefits, civil service reassignments and redesignated duty statements), but as of October 2007 the staffing shortages had largely been eliminated. Hagar also reported compliance with upgrading the case management aspect of all CDCR investigations. Finally, he reported acceptable performance in the area of internal communication and cooperation at the headquarters level.

Hagar specifically noted that the number of staff disciplinary cases that became moot due to excessive processing time (which used to run 45%) was now down to 6.28%, half of which were “saved” by timely BIR intercession.
However, he also found unacceptable delays in implementing disciplinary-investigation oversight at the individual prison level, in the Parole Division and at juvenile facilities.

While Hagar found measurable progress where the oversight program had been forced down CDCR’s throat by constant court orders, he doubted the CDCR could be depended upon to continue to improve its performance – or even maintain it – if court oversight were abandoned.

He reported that turnover of the CDCR’s headquarters staff at the top levels had continued at such a rate as to cause mismanagement of lengthy ongoing investigations. Hagar noted that while many investigations were “saved” by BIR intervention, the success of the program was now fragilely based upon the BIR’s efforts (with limited resources) to supplant CDCR staff efforts. The projected turnover rate of wardens, chief deputy wardens, employment relations officers and healthcare managers would continue to cripple investigations at the facility level.

In fact, Hagar found that while proper procedures were largely in place at the headquarters level and at Pelican Bay State Prison (due to direct court orders), the expansion of such compliance into all other CDCR prisons, which was expected to flow from those initial gains, had largely not happened. Nor could he discern any realistic CDCR plan to remedy this chronic deficiency.

Not surprisingly, Hagar observed that the only real progress made over the years was in response to specific, directed court orders. Absent such hand-holding, CDCR could not overcome its bureaucratic inertia of being in constant “crisis-of-the-day” mode, so as to be entrusted with building on the initial gains made in 17 years of court oversight. The Special Monitor’s doubts were grounded in his observations that CDCR had a “continuing culture that does not care about excessive force or the code of silence.” For example, he noted “the problem in Parole, based on certain recent developments, appears to be a lack of concern about use of force and code of silence offenses on the part of high level officials.”

Hagar did not profess to know when court monitoring would no longer be needed, positing rhetorically, “Must the State demonstrate that it will never have future problems?” He left it to future discussions between the CDCR and the Inspector General as to how to resolve this nagging dilemma prior to the scheduled end of court monitoring.

It remains to be seen how the court views CDCR’s intransigence in following its earlier orders. Indeed, the same court (with Hon. Thelton Henderson presiding) is part of a three-judge panel that is considering imposing a population cap on the CDCR due to overcrowding – another problem left unresolved after decades of the prison system’s bureaucratic incompetence. [see: PLN, March 2008, p.38].

The fourteen-page Special Master report is augmented by over 100 pages of detailed charts and graphs replete with numerical data documenting compliance monitoring in each area of management control. The CDCR filed a response with the court that argued against the need for continued monitoring, based largely on legal rather than factual arguments.

See: Madrid v. Tilton, U.S.D.C. (N.D. Cal.) Case No. 3:1990-cv-03094 TEH, Special Master’s Final Report re Status of Post- Powers Remedial Plan Monitoring, October 12, 2007. The reports are posted on PLN’s website.

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