California Prisons: Does Realignment Mean Reform?

Today’s guest blog is by Karin Drucker. Karin has worked in juvenile justice advocacy and research in California with the Center on Juvenile and Criminal Justice and the Ella Baker Center for Human Rights. She has also worked at the Children’s Defense Fund and the White House Initiative on Tribal Colleges and Universities.

In March, the Supreme Court ordered California to reduce its state prison population by 33,000 inmates by 2014. This is a herculean task. Even if the state accomplishes that reduction, California prisons will still be bursting at the seams with 40% more inmates than they were designed to house.

This dismal prediction is the unhappy background to the California Correctional Association’s plan for adult prison realignment. This plan, a product of Governor Jerry Brown’s June budget agreement, has the potential to accomplish changes in criminal justice policy that have been politically impossible since the 1990s. The legacy of California’s situation hinges on decisions made during the economically flush 1990s. At the time, “tough on crime” politicians gave residents of California laws like Three Strikes, which mandates life sentences for individuals on their third felony. The great recession of the last few years, ironically, may incite the state’s 58 counties to implement more effective, more humane and cheaper criminal justice practices.

The Supreme Court’s order challenges California’s behemoth state prison system to make itself fiscally sustainable; to treat incarcerated people with proper health care and dignity; and to rethink “normal” levels of sentencing in correctional systems. Will California’s solution, set out in Assembly Bills 109 and 118, do that? Criminologist Barry Krisberg answers this question bluntly: No one knows.

Realignment would be a quick and dirty fix if prisons were to open their gates and allow 33,000 inmates to flood the streets, a narrative that realignment’s critics try to craft. (State Legislator George Runner has instructed his constituents: “It’s time to get a dog and a gun.”) But AB 109 neither transfers nor orders early release of any inmates.

Instead, inmates will complete their sentences in state prisons and trickle into county post-release community supervision services. After October 1st, all new offenders who are non-violent, non-serious, and non-sex offenders must go to county jails.

Without a direct transfer of prisoners or early release, prison de-crowding will happen slowly, and it will depend on the rate of those exiting and entering state prisons. It is unclear if, by 2014, the balance of prisoners exiting and entering the system will reduce the population by 33,000. Lengths of sentences will play massive parts in determining eventual reductions in prison population. All of these factors make it difficult to crunch the numbers about when, and how, California will comply with the Supreme Court order.

What is a county to do? The burden shifted to California’s 58 counties is enormous. For decades, it has been unambiguously clear that state prison systems need to shrink their populations, but not at all clear who should shoulder the burden. Counties have fought tooth and nail to evade the responsibility; there is a reason it took a Supreme Court ruling to send California politicians scrambling for a solution. Yet it is true that most counties are strapped for cash and 24 of the 58 counties lack the capacity to house the individuals they would otherwise send to state prisons in a single month.

The question has become: should those individuals be going to jail or prison at all? The “non-non-non” population’s offenses, as the Center on Criminal and Juvenile Justice has shown (CJCJ), usually revolve around drug possession, minor drug sales and addictions that contribute to property offenses. This population usually fares better under community supervision than it does entering confinement, which has a criminogenic effect—it is no accident that the state recidivism rate hovers at an astronomical 70%. Rhetoric used for political fear-mongering—evoking images of über-criminals who will walk the streets as soon as fewer individuals are made to serve time—is a costly hoax.

In fact, prison de-crowding and especially cost saving will rely largely on counties. Their behavior will depend on financial incentives, but so far, the state has done a poor job rewarding counties for new, cost-saving alternatives to incarceration. Some counties, including Santa Cruz and San Francisco, have been establishing alternatives since before realignment began.

Ironically, the state allocates funding for realignment using the number of new individuals becoming a county’s responsibility. Therefore, counties that have already assumed that burden (thus saving the state money already) receive less money than state-dependent counties, which have historically referred high numbers of offenders to state prisons. Small counties tend to be state-dependent because they lack resources. However even San Bernadino county, with roughly 1 million people, incarcerates 14 times as often as its counterpart, Contra Costa County. As Dan Macallair at CJCJ has written, justice in California is really justice by geography.

Still, alternatives, including community supervision and need-appropriate service provision, will hopefully eliminate the need to build new jail beds, which most counties cannot afford to keep full anyway. Californians United for a Responsible Budget, a watchdog group that has given a report card to each county’s realignment plan, points out that there is a real need for counties that have successfully implemented alternative programming to pressure other counties into doing the same. However, many counties plan to draw down their realignment resources under another stream, AB 900, which dedicates 8 billion lease revenue bonds to building 53,000 new jail beds statewide.

As of right now, Sheriff Lee Baca, who oversees the astoundingly brutal L.A. county jail system, is planning a $2.66 billion jail expansion; 24 other counties are also slated to draw down AB 900 funds to construct jails rather than creatively expand programming. Unfortunately, unlike other states, California does not require its counties to demonstrate lower incarceration rates as a prerequisite for receiving funds. Despite hopes that making cash-strapped counties even more cash-strapped could push them to cost-saving alternative programs, the funding allocations under AB 109 and AB 900 do little to incentivize different policies, i.e. less incarceration.

Like most services in California, adult realignment and traditional juvenile justice funds are plummeting. On the juvenile justice side, which is not undergoing realignment, cuts will still impact counties’ juvenile justice funding. In his June budget agreement, Governor Brown called off his original proposal to realign juvenile offenders from the state Division of Juvenile Justice (DJJ) to counties. Counties had opposed the plan fiercely. That was a pyrrhic victory.

The same budget agreement also mandated that if the budget deficit remained untenable by December, it would automatically trigger budget cuts. On December 13, the LAO placed California’s budget shortfall at $2.2 billion, and Governor Brown announced funding reductions. (Governor Jerry Brown has proposed a constitutional amendment that would insulate realignment funds from these trigger cuts, much as K-12 education is better protected, but the idea has not yet gained a political foothold.)

Counties are now worse off than they would have been under juvenile realignment. Ironically, they will now have to pay the DJJ an impossible $125,000 for each youth who could have stayed at a county jail. As a result, youth will likely be transferred there anyway. Under realignment, counties would be paid to take youth back; now, they would do it to avoid costly fees. Additional challenges for adult realignment include legislators’ efforts to push through laws that would deem more crimes “serious” and therefore allow counties to send those offenders back to state jail.

A final and crucial point is that realignment does not consider alternatives to incarceration for those in state prison who are quite old, a group that has generally “aged out” of crime and has among the lowest rates of recidivism. These aging inmates drain state resources most quickly because they are housed over the course of lifetimes, during which health care needs accelerate. The prison population is getting older, not younger, and it is getting more expensive.

Realignment is an extraordinary political opportunity for criminal justice reform, but it will only be a reform if counties make it one.