An intellectual history of Clark Kelso

J. Clark Kelso has a long history as a “fix-it” man in state government. In his latest assignment, as the federal receiver in charge of prison health care, he’s been tasked with fixing a system so dysfunctional it’s become a national symbol of what’s wrong with corrections.

But the McGeorge Law School professor also has a long academic career under his belt. And it is in his role as a legal expert that we can find clues to his performance as a powerful prison overseer.

In his many years of writings for academic journals and also opining on legislation, a portrait emerges of a man with clear ideas about how we got into our current mess — and how we might get out of it. He has also shown a willingness to offer opinions that put him at odds with some of the most powerful institutions in the state, including judges, the Department of Corrections and the powerful state prison guards’ union.

For one thing, Kelso has been an outspoken advocate for sentencing reform. He has also been highly critical of California’s Three Strikes law, which some critics say has been largely responsible for crowding prisons with aging, ailing inmates who pose little threat to public safety.  

Kelso, who declined to be interviewed for this story,  also has opined on grand juries, appeals courts and elections for judges. He’s on record supporting the legality of private prisons.

“At a time when many law professors write highly theoretical pieces with very little application on the ground, many of his projects are ones that really have impacts on the way the justice system is administered,” said Michael Vitiello, another member of the law faculty at McGeorge who has collaborated with Kelso on several papers.

Of course, Kelso has long had a hands-on role in state politics. He’s served as both acting Insurance Commissioner, after the departure of Chuck Quackenbush in a scandal in 2000, and as the state’s Chief Information Officer. He’s been a scholar-in-residence at the California Administrative Office of the Courts.

A 2007 profile in Prosper magazine called him “the state’s handyman,” and said “When a department seems broken or plagued by scandal, he’s the one brought in to fix it.” All of this is in addition to his position at McGeorge, the Sacramento-based law school of the University of Pacific, where he has taught since 1986. Kelso has directed the school’s Capital Center for Government Law and Policy for the 14 years.

He’s also made himself available to legislators in a number of ways — something Vitiello said began partially as Kelso’s response to term limits and the growing number of inexperienced legislators coming to Sacramento.

This was the role that had him offering written testimony relating to five bills in 1997, including two that sought to push the use of private prisons in California. At the request of the Joint Committee on Prison Construction and Operations, Kelso wrote an analysis of a case decided that year by the California Supreme Court, Professional Engineers in California Government v. Department of Transportation.

That case “raised serious questions” about the constitutionality of contracting out “work which has traditionally been performed” by state civil service employees. Kelso concluded the case “did not fundamentally alter the law.” The use of private prisons, he wrote, would be permitted if a number of conditions were met, including the requirement that each contract save the state money and be individually approved by the legislature.

At issue then were a pair of prison privatization bills put forward by then-Sen. Richard Polanco. His SB 640 would have created a California Correctional Privatization Commission. Modeled on an agency in Florida, it would have been tasked with entering into contracts for sending inmates to privately-run prisons. Polanco’s SB 818 would have directed the Department of Corrections to sign contracts with private providers to house non-violent female inmates.

Neither bill passed. But in an interesting side-note, then Assemblyman Mike Machado provided key support for SB 818. He helped it get out of the Assembly Appropriations Committee, and gave it one of its 38 votes on the Assembly floor. These days, Machado is a $300 an hour consultant working for the Receiver’s office, trying to convince local leaders in Stockton to support housing several prison system healthcare facilities there.

The prison privatization issue has been back in the news ever since Gov. Arnold Schwarzenegger pushed it as part of his last State of the State speech on Jan. 6. The administration has also expanded an existing contract with a private prison provider, Corrections Corporation of America. More recently, Schwarzenegger made headlines yet again by saying the state could save $1 billion by building prisons in Mexico.

The California Correctional Peace Officers Association, which represents prison guards, has already sued the governor over the practice. CCPOA v. Schwarzenegger has been a back-and-forth legal battle since it was filed in 2007. As it stands now, a federal appeals court has ruled that the governor can send inmates to private prisons out of state under a State of Emergency Proclamation on prison overcrowding.

CCPOA spokesman Ryan Sherman said Kelso was “a very smart guy” and noted that his written testimony did not advocate for private prisons, it merely affirmed Kelso’s belief that they are legal.

Sherman also said the CCPOA supports Kelso’s announced goal of making prison healthcare more “transparent.” But he added that if prisoners are being kept in private prisons hundreds or thousands of miles outside the state, “One would have to question how effective such oversight and transparency would be.”

Transparency has been another issue Kelso has pursued in his writing, arguing that the courts system should be far more open to outside scrutiny. For instance, writing for the Appellate Courts Committee of the 2020 Vision Project back in 1994, Kelso recommended that “As appellate courts become paperless, provision should be made for giving the public access to unpublished as well as published opinions.”

This idea raised howls of protest from judges, who claimed that such a system would be intrusive and unwieldy. But these unpublished opinions, which make up the majority of what most judges write, have now been available since 2002.

“He’s doing incredibly interesting things all the time, getting appointed to positions that some people might not want because they’re too controversial,” said Joshua Weinstein, a staff attorney with the Court of Appeals who worked on 2001 task force report with Kelso on the Appellate Court transparency issue.

Noting that Kelso receives far less salary than the last reciever, Robert Sillen, Weinstein added: “He’s not in it for the money. He seems to be genuinely driven by good government concerns.”

However, some critics have said that Kelso has been less than forthcoming at times in his role as receiver. For instance, Kelso has found himself in a very public fight with the Stockton Chamber of Commerce and others who oppose his plans to open corrections healthcare facilities there. Doug Wilhoit, the chamber’s CEO, charged that Kelso hasn’t communicated with the community and essentially “tried to go behind our backs” to get the plan through.  

Perhaps most controversial to some would be Kelso’s position on sentencing and three strikes. In a 2004 Loyola of Los Angeles Law Review article he wrote with Vitiello on sentencing reform, they called for w
holesale changes in how sentencing is handled in California, they wrote: “Three Strikes’ proponents have created a legend that the law is responsible for reduced crime rates in California.”

They go on to say California’s Three Strikes law goes “beyond the Byzantine” and call it “inconsistent” and “incoherent.” The paper also praises states that have adopted Sentencing Commissions—a controversial idea to many Republicans—and credit three strikes and other sentencing laws with filling prisons with older inmates who have expensive healthcare needs and pose little threat to public safety.

Vitiello said that Kelso was looking at sentencing from the perspective of a true economic conservative, asking “is society getting a good value for our investment?” Vitiello said that they agreed that “the legislative process won’t work very well on sentencing reform,” and that Kelso was concerned about how politicized the issue has become.

“We’re still living in the aftermath of Willie Horton,” Vitiello said. “Politicians are afraid to take on the issue.”

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