Thelton Henderson: His prison reforms face a backlash

As the judge climbed the watchtower stairs in Pelican Bay prison, he heard muffled gunshots below. When he reached the top, he looked into the prison yard and saw bodies lying in the dirt. One was his law clerk, spreadeagled on the ground in his suit, alongside dozens of inmates. Guards stood over them, guns aimed.

Now, newly retired and stricken by an autoimmune disease, the judge is watching the first serious backlash to his legacy.

That prison pageant in September 1993 was a tacit acknowledgement of the power one extraordinary judge held over California’s prison system. During his 37 years on the bench, Henderson did more than anyone to transform California’s notoriously overcrowded prisons into a great experiment in second chances.

Now, newly retired and stricken by an autoimmune disease, the judge is watching the first serious backlash to his legacy. A campaign led by law enforcement organizations is gathering support for a measure on the November ballot that would roll back some of California’s reforms — a transformation Henderson believes is still unfinished.

“I think it’s awful,” Henderson said. “It’s a regressive move. It’s a step backward if it happens.”

Henderson, 84, became a lawyer during the civil rights era, and that moral framework and activist energy guided his work. When he joined the federal bench, he presided over a series of prison cases that ultimately forced radical changes in the system.

“I was going in uncharted territory, but I justified it in my mind because every six days a person is dying.” — Thelton Henderson.

He started with Pelican Bay, finding in 1995 that the state’s new supermax prison was so plagued by problems that the courts had to take over. He appointed a federal monitor. In 2001, he presided over a lawsuit claiming that prison medical services were inadequate. This case merged with another to become Brown v. Plata, in which a three-judge panel, including Henderson, found the state’s prison system was so overcrowded that inmates were dying unnecessarily at the rate of 60 a year. The judges ordered California to reduce the number of prisoners. In a landmark ruling, the Supreme Court agreed.

“I was going in uncharted territory, but I justified it in my mind because every six days a person is dying,” Henderson said. “And I thought, we talk about life and liberty and life is the most important of those things. Human lives are being lost. So I thought this justified pushing my powers as far as I possibly can to save those lives.”

Along the way, the judge’s focus on social justice collided with the political pragmatism of the state’s governor, Jerry Brown, who served as the state’s chief executive from 1975 to 1983, and again starting in 2011. Eventually, the judge prevailed. In an experiment that’s been called “an act of mass forgiveness unprecedented in U.S. history,” California passed laws that released tens of thousands of prisoners and prevented thousands more from going to prison.

But the judge hoped the state could go even further, and just before retiring from the bench he met with Gov. Brown, the latest encounter in years of conversation, mostly at Henderson’s kitchen table in Berkeley.

Unlike the federal government and many states, California has no sentencing commission, which could recommend system-wide reforms.

“He opened it up by saying ‘I’ve done everything I can. What else can I do? What do you want me to do?’” Henderson said. “I think these were very good efforts. I think he did do everything that was politically feasible, possible, for him to do. It was a good effort.”

“It didn’t completely solve the problem.”

For one thing, he told the governor, there is too little support for prisoners reentering society. For another, the system is still plagued by racial disparities; at the end of 2016 African-American men made up six percent of the state’s population, but 29 percent of its prisoners.

The state’s corrections budget remains the nation’s largest. Unlike the federal government and many states, California has no sentencing commission, which could recommend system-wide reforms.

“I think his social justice gene is so impenetrable that I don’t think he could help himself.” — Melinda Haag

A star halfback, Henderson won a scholarship to the University of California, Berkeley, then served in the Army before going to law school. As the first African-American lawyer in the Civil Rights Division of the Department of Justice, he saw how the courts could be used to fight discrimination. He investigated voter suppression in Louisiana and the 16th Street Baptist Church bombing in Birmingham, Alabama.

One night, a civil rights activist with car trouble asked to borrow Henderson’s government-rented car. Henderson agreed. The activist was Martin Luther King, Jr., on his way to the marches in Selma. The incident was seized by critics as evidence the Kennedy administration was providing direct support to civil rights activists. Henderson was forced to resign.

“I think his social justice gene is so impenetrable that I don’t think he could help himself,” says Melinda Haag, the former U.S. Attorney in San Francisco. “It never occurred to him not to go up and see the prison, or to take over the medical care, or to give Martin Luther King his car. He thought, ‘Of course I’m going to give him the car.’ He just doesn’t shy away from any of it.”

(Haag would later prosecute two guards for mistreating inmates at Pelican Bay. The litany of abuses included staging the fake riot meant to send a message to Henderson. A jury convicted the guards of conspiracy to violate inmates’ civil rights and sentenced them to six and seven years in prison.)

Expelled from the Kennedy administration, Henderson returned to California. He argued civil rights cases and served as a dean at Stanford Law School, where he pressed for admitting more students of color. In 1980, President Jimmy Carter appointed him to the federal bench.

“You can only bring to the bench what you have, what you’ve grown up with, and it affects you profoundly.” — Thelton Henderson

Henderson brought an unusual perspective to the court. One day in the court’s cafeteria, another judge mentioned a race discrimination trial that was underway. A group of black workers had sued their employer, claiming that their co-workers had hung pictures of baboons and scrawled racial epithets on their lockers.

“He said, you know, I just can’t believe that—people don’t act like that,” Henderson says. “I remember saying, ‘I grew up hearing my father and my uncles tell those stories.’ That’s when I realized the difference: my life experience. I understand those locker rooms. I have family who suffered those experiences… You can only bring to the bench what you have, what you’ve grown up with, and it affects you profoundly.”

In 1990, Henderson became the chief federal judge in San Francisco. He noticed a sudden spike in complaints from Pelican Bay. The complaints, handwritten by inmates, portrayed hellish conditions: Prisoners were caged outdoors wearing only underwear. One mentally ill prisoner suffered third-degree burns after guards forced him into a bathtub of boiling water. Henderson invited the prison’s warden to meet with senior judges to find out more. Henderson was appalled to learn the warden thought the conditions were acceptable.

It was sixteen years before the judge turned control of Pelican Bay back to the state. By then, he was deeply entangled in another prisons case.

A group of Pelican Bay prisoners brought suit. Prison officials denied that they mistreated any prisoners. Instead, they argued that the prison operated exactly as planned, isolating the most brutal, disruptive prisoners from the rest of California’s prisons. The case went to trial, and Henderson ordered an expert, called a special master, to oversee the prison.

Henderson kept a close eye on the prison. When he began his visits, he stayed in a small town near the prison. He quickly realized that hotel staff were alerting the prison that he was in town. He began staying about two hours south, so he could show up at the prison unannounced.

“I think I see my job as a judge as something beyond what a lot of judges do,” he said. “I see my duty as a judge, when I find that people are dying unnecessarily because of violations, I don’t think my job stops at writing an order. I feel I need to do something to stop it. And that’s really the dividing line.”

It was sixteen years before the judge turned control of Pelican Bay back to the state. By then, he was deeply entangled in another prisons case. This case, also a class action, claimed that the state’s medical system was so broken that inmates were dying. The prisons were so overcrowded, the prisoners claimed, that the state couldn’t provide basic care.

The ailments were mostly routine, a litany of bad knees and aching hips. But the conditions were shocking. Fifty sick inmates held together for hours in small cages awaiting treatment. Fifty-four inmates sharing a single toilet. Waiting lists for mental health treatment were years-long. The suicide rate was twice the national average for prisoners. Suicidal inmates were kept in “dry cages,” telephone-booth-sized contraptions without toilets.

The governor at the time, Arnold Schwarzenegger, had declared the overcrowding a statewide emergency.

At San Quentin State Prison, just outside San Francisco, Henderson walked into a gymnasium and saw hundreds of men crammed together in bunk beds. The bunks were so close that inmates had to turn sideways to squeeze into their beds.

“That’s what the overcrowding was—and that was hugely compelling,” Henderson says. “If it was a summer camp, you’d say that’s really crowded, but it’s not dangerous. It’s a very dangerous thing.”

Wendy Still, a former high-level administrator in California Department of Corrections and Rehabilitation, went with Henderson on one of his trips to San Quentin. When she saw the grim conditions and the judge’s shocked reaction, “there was no doubt in my mind as I drove away from the prison that the system was going into receivership.”

The governor at the time, Arnold Schwarzenegger, had declared the overcrowding a statewide emergency. Henderson began to hold regular meetings with all major players in the system. He didn’t expect the ills of the system to be cured overnight.

“I think the thing you have to understand is that people on the front line don’t like to be told to change,” Henderson said. “They resist things.”

He described his method as the catalyst approach, after an academic theory developed by a Columbia University professor on the way courts could be used to change bureaucratic systems. It was similar to the approach he’d tried with Pelican Bay—encourage everyone involved to buy into a solution, and long-term change will happen.

But when he saw how slowly change happened—and how many people were dying—he felt he had no choice but to take over all 33 prisons. No judge in the country had done anything on that scale.

“Appointing a receiver pushed my powers to the very, very limit,” the judge recalled. “I can’t think of a thing I could have done beyond that. I think it pushed them because it was unprecedented. There was nothing out there that says here’s how you take over a state medical system.”

The prisoners’ lawyers argued that change couldn’t happen until overcrowding was fixed. Henderson and two other judges formed a three-judge panel to oversee the prison system. They ordered the state to reduce its prison population, which at the time of the lawsuit was an astounding 181 percent of capacity, to 137.5 percent.

By then, the governor was Jerry Brown. In a meeting with Henderson, Brown worried that releasing prisoners could lead to a rise in crime.

“You’re letting Willie Hortons out on the street, that’s what you’re doing with this decision,” the judge said Brown told him. Horton, a convicted murderer who fled while on a prison furlough and terrorized a couple in their home, became an advertisement for tough-on-crime politics in the 1980’s.

Henderson was surprised because of Brown’s reputation as a progressive leader.

“He has these little things that no one can account for,” the judge said. “That’s just Jerry, they’ll say. And this is one. Something about the prisons. You know, I would have expected him to jump on this and want to clean it up. He said, ‘You can’t do it. You’re exceeding your powers. You can’t do it.’”

The state fought the case all the way to the Supreme Court, where a 5-4 majority led by Justice Anthony Kennedy found that Henderson and the other judges were within their powers to force the state to cut its prison population. In an unusual move, the justices appended photos of the suicide cages and gyms full of bunk beds to the decision.

The governor was forced to reckon with the overcrowding, and eventually became a champion of criminal justice experiments that went far beyond the court’s order. He supported realignment, a plan to shift thousands of people from state prisons to county jails. He then helped push Proposition 47, a ballot measure that reclassified a number of nonviolent crimes as misdemeanors that no longer carried a state prison sentence. And he was a strong advocate for Proposition 57, which changed the state’s parole system to offer earlier releases.

Henderson contends there are still improvements to be made. He advocates a parole board of people from various backgrounds, not just law enforcement. He wants better conditions in county jails that now house former state prisoners.

But a backlash is building, sparked by fears that the changes have led to an increase in crime. Whether crime is rising significantly, and whether the drop in the prison population is to blame —the data offers no clear answers to either question. But the battle for public perception is already fierce.

A coalition led by law enforcement officers and prosecutors is gathering signatures now to get a measure on the November ballot. The measure, called the Reducing Crime and Keeping California Safe Act of 2018, would redefine more than a dozen crimes, making those convicted ineligible for early release. It would also classify serial theft as a felony and mandate parole revocation for parolees who have three violations.

The judge visited San Quentin one last time, in 2015, to give a talk in the prison chapel. As he entered the room, the prisoners rose to their feet and cheered.

He said that opponents of the ballot measure should focus on the expense of incarceration, which he equates to “sending your kid to Stanford.” (It costs about $71,000 a year to incarcerate an inmate in California. A year at Stanford costs about $71,500 a year.)

Overall, though, he said the state is moving in the right direction.

“At this point, the arc of criminal justice is bent toward better conditions in our prisons—more humane sentences, more realistic treatment of people in our state prison system,” he said. “You can quote me as being optimistic in the long run.”

The judge feels he has won some tangible victories. San Quentin now has a gleaming modern medical facility. He went to the opening ceremony. A prisoner approached him.

“He came up to me and said, ‘I hear you grew up on 43rd and San Pedro,” the judge says.

The judge was wary.

“And I said, ‘How did you know that?’” the judge said.

The inmate, an editor at the prison newspaper, said that he’d grown up in Los Angeles, too, on 45th Street. He started talking about a corner store.

“And he described it and the store, and I realized we grew up two blocks away from each other,” the judge says. “We talked about it, and he’s a very smart guy, and I realized that, here I’m a federal judge for lucky circumstances in my life, and he’s in prison.”

The judge visited San Quentin one last time, in 2015, to give a talk in the prison chapel. As he entered the room, the prisoners rose to their feet and cheered.
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Click here to see Capitol Weekly’s oral history project on Thelton Henderson. About six weeks before Henderson stepped down, he was interviewed by investigative reporter Lowell Bergman, who has known the judge for many years. Bergman teaches at the Graduate School of Journalism at the University of California, Berkeley.)
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Ed’s Note: This story originally appeared at The Marshall Project, a nonprofit news organization covering the U.S. criminal justice system. Sign up for their newsletter, or follow The Marshall Project on Facebook or Twitter. This article was published by the Marshall Project in collaboration with Pacific Standard.