“Realigning” Criminal Justice in California: Real Reform, or Shifting the Deck Chairs?

“Realigning” Criminal Justice in California: Real Reform, or Shifting the Deck Chairs?

E. Currie: “Realigning” Crim. Justice

On October 1 the state of California launched a much-anticipated plan to “realign” the state’s criminal justice system by shifting thousands of so-called “non-non-non” (non-serious, nonviolent, non-sex) offenders from the state prison system to the custody of county authorities. As state officials take great pains to point out, the realignment does not affect prisoners who were incarcerated in the state’s swollen prisons before October: the aim is to slow the future flow of low-level offenders into the system. This includes technical parole violators, whose constant “churning” into and out of the state prison system has long been a major source of California’s outsized prison population and, accordingly, of prison spending. Almost two out of three new prison admissions in 2009 were parole violators, and only about a fifth of those had actually committed new crimes.

The realignment has been ballyhooed by its promoters as nothing less than a “revolution” in criminal justice—a “sea change” in the way California handles its crime problem. It’s claimed that under the new approach it will be possible to devote considerably more resources to the rehabilitation and reintegration of prisoners into the community, services that the state system has proved incapable of reliably providing. At the same time, large sums of money would be saved by devolving responsibility to the local level, where prisoners will be closer to home. The hope is that the result will be a reduction in the state’s startlingly high rate of recidivism, which hovers in the neighborhood of 70 percent over the course of three years.

Indeed, under different economic and political circumstances, the realignment could be at least the beginning of a real change in the way California deals with crime, and one that could offer important lessons to other states. But though there is much to be said for diverting less dangerous offenders from state custody, as things stand it’s unlikely that realignment can be much more than shuffling the problem from one strapped and ineffectual level of government to another. Realignment might save the state some money, but probably not as much as its supporters hope. And in the absence of more fundamental changes that are nowhere on the horizon, it cannot accomplish much more. Realignment will leave intact a crisis of crime and punishment that is much more entrenched and much more severe than current rhetoric suggests.

ON PAPER at least, the realignment represents a fortunate marriage between fiscal imperatives and penological common sense. In fiscal year 2010, California spent nearly $10 billion on state prisons, up from around $610 million (in constant dollars) in 1980. That roughly 1,500 percent increase was driven by repeated increases in the length of sentences, of which California’s notorious “three strikes and you’re out” law is only the best known, as well as dramatically increased chances (nearly doubled between 1987 and 2007) of offenders going to prison for a given offense in the first place.

The state’s prison population grew so rapidly that even a massive and unprecedented building program could not keep up. California built twenty-one new prisons in the 1980s and 1990s, while the inmate population rose from about 22,000 in 1980 to more than 170,000 in the first decade of the twenty-first century. The number has fallen to about 160,000 today, but even so, and despite a range of strategies implemented to reduce the inmate population, California’s prisons are now running at 181 percent of capacity. The state currently outsources nearly 10,000 prisoners, mainly to Arizona, Mississippi, and Oklahoma, but that has only skimmed the surface of the prison population.

Many people in the state, including prison reform advocates, expected that this metastatic growth would sooner or later run afoul of the state’s otherwise conservative fiscal bent and anti-government political culture. But to the initial surprise of many, the prison expansion just kept on rolling, with a mostly bipartisan momentum sustained by the perception that no candidates ever lost votes by declaring themselves tough on crime, and by the considerable war chest of the state’s formidable prison guards’ union. “Tough” measure after “tough” measure was passed with virtually no attention paid to who would pay for the resulting prison boom, ultimately producing a correctional system that has moved beyond merely dysfunctional to truly perverse. By the turn of the century the system had become divorced not only from its earlier modest commitment to rehabilitating offenders but from the most basic social reality: a system characterized, as Emily Troshynski of Drake University has put it, by “policy without responsibility.”

It is a system that famously stacked inmates in triple-decker bunks in prison gymnasiums and that sent them back into “the community” with virtually no resources, watched over by a state parole apparatus that provided diminishing help coupled with increasing surveillance—a sure recipe for the costly shuttling of parole violators in and out of state custody. It’s a system that placed such pervasive and elaborate residential restrictions on several thousand designated sex offenders that many literally had no place to live; where hundreds and perhaps thousands (no one knows for sure) of inmates went on a hunger strike this year to protest the genuinely Orwellian conditions in the state’s so-called “supermax” prisons, where they are confined for twenty-two-and-a-half hours a day to their cells; where most programs that might help inmates succeed on the outside have been gutted.

Yet neither the prisons’ growing fiscal burden nor their human costs stimulated significant change until court intervention forced it. In a very real sense, this was a system so out of control that few people, particularly in the state legislature, wanted even to think very much about it. For many Californians the prisons became part of the landscape, like clogged freeways and petrochemical smog.

What finally precipitated the courts’ intervention was the system’s manifest inability to provide adequate healthcare to its exploding population, such that by the early 2000s California was killing dozens of inmates each year through inappropriate or absent care. The courts insisted that the state invest enormous sums to bring correctional healthcare up to some minimally constitutional level, which the state tried reluctantly and vainly to do (which is one reason the cost of incarcerating a single offender for a year rose from roughly $25,000 at the start of the decade to its current level of more than $49,000). Despite state efforts, the federal courts determined that prison healthcare was inadequate in the face of massive overcrowding, a finding backed by the U.S. Supreme Court in May of this year. The Court mandated that the state reduce the prison population to only (!) about 134 percent of capacity by mid-2013 through a phased reduction of roughly 34,000 inmates. Governor Brown’s proposal—which is part of a larger “realignment” package that also shifts certain mental health and social service responsibilities from state to local government—is the state’s response.

AFTER DECADES of heedless prison expansion, the Brown realignment appears, at first glance, to be a generally reasonable intervention on the side of reality and good sense. In this, it follows changes in other states around the country. After decades in which self-consciously “tough” sentencing drove prison and jail populations to unheard-of heights, the national incarceration rate actually dipped slightly in 2009. This was due in large part to a few states where dire fiscal circumstances, and a slowly dawning recognition that using vast sums of scarce state monies to lock up people who posed little danger was counterproductive, spurred changes in law and policy. Several states, including New York, New Jersey, and Michigan, have seen significant declines in prison populations in recent years. Some of them actually closed prisons, which would have seemed unimaginable in the 1990s. Though these declines were partly offset by continued rises in other states—Pennsylvania’s prison population, for example, has increased steadily in recent years—the net result is the first drop in the state prison population nationally since 1977.

But how much California’s realignment will actually affect the state’s costly investment in incarceration, much less the deeper problems of crime and punishment in California, is a much trickier question—and one that reveals the deeper-rooted obstacles to successful criminal justice reform in the United States. To begin with, the state is not (with some exceptions) proposing to make major changes to its over-the-top sentencing structure, but rather to shift some of the burden of handling low-level offenders to the counties. There is reason to believe that costs could decrease—some—under the realignment plan: in particular, local jails tend to release offenders after less of their sentence than state prisons do. But the counties, in the current fiscal crisis, still don’t have enough money to cope with the needs of the offenders they already have, much less a flood of new ones. And the counties are no more likely to see fiscal rescue than the state.

Recognizing that local governments cannot come up with money on their own to absorb the offenders who will be diverted to their care, the realignment funnels significant state funds to the counties to ease the transition and share the cost. But to the extent that the state needs to shell out money to make realignment work, it isn’t saving money, and meanwhile many counties are already complaining that what the state is proposing to provide isn’t nearly enough to cover their increased costs. Even for basics like hiring more local probation officers and sheriffs’ deputies, many counties will have to come up with new sources of funding to meet the new mandate. The situation is especially troublesome because the level of support the counties will get in the future is entirely contingent on the health of the state budget, which has long been precarious at best. The governor has promised to support a ballot initiative to guarantee a stream of new funding for realignment, but it is anybody’s guess whether such a measure would pass.

Saving money, of course, isn’t the only rationale for the realignment. Its proponents hope that local authorities will be better able to provide critical rehabilitative services like drug treatment and job training, thus increasing the chances that offenders will successfully re-enter productive life. Recent surveys suggest that at least three out of five state prisoners have drug problems that call for intensive treatment, and over 50 percent have significant symptoms of mental illness. Most inmates are unskilled, striking proportions suffer from chronic health issues, and a substantial proportion have never held a legitimate job. Confronting those problems in a serious way could indeed save lives and money.

The problem, again, is the diminishing amount of money available in California’s public sector to provide these services—a problem that already bedevils the state’s existing program under Proposition 36, passed in 2001, which mandated that low-level drug offenders be offered treatment in the community rather than incarceration. The idea was a good one, but the follow-through has been spotty and weak. Under the current fiscal emergency, programs to help released offenders transition to the community in San Francisco and elsewhere are on the verge of shutting down.

Furthermore, the counties haven’t exactly accumulated a stellar record of humane and competent handling of prisoners. The Los Angeles County Sheriff’s department is currently under investigation by the FBI for alleged abusive treatment of prisoners in county jails. The county probation department, which will probably take much of the responsibility for the flood of new offenders under realignment, has for years faced investigation after investigation concerning its lack of effective programming for the offenders already in its care. It’s unclear if the counties, even with more certain state subsidies, have the ability to provide the level of help that offenders need.

And there is an even more fundamental problem, which has received virtually no attention. Nowhere in the realignment plan is there a serious strategy to address the ongoing crisis of the communities from which the great bulk of the prison and jail population comes. As in the rest of the country, there is a tendency in California to celebrate the decline in serious crime from the early 1990s peak—and even to argue that the fact that this happened despite rising levels of poverty, joblessness, and inequality proves that social conditions have little to do with crime. That perspective has helped to fuel the endless search for purely administrative solutions to the crime problem. But it is shortsighted and dangerous, and reflects a profound disconnect from the reality of crime in the United States.

It’s true that Californians are less likely to be murdered or robbed or wounded in a drive-by shooting than they were twenty years ago. But in the parts of the state worst hit by crime—as is true across the United States—this means that the level of violence has fallen from the truly catastrophic to the merely disastrous. The welcome overall decline in crime masks a continuing crisis of violence in many of the most vulnerable and disadvantaged places in America. Some more favored cities now enjoy levels of violence that are quite low by (American) historical standards, while others remain places of crippling fear and devastation. Oakland, with roughly 400,000 residents, racked up almost twice as many homicides last year as San Diego and San Jose combined, with a population of well over two million. It’s not accidental that little Camden, New Jersey (with a population just over 75,000) suffers more homicides than San Diego, or that New Orleans, the most third-world-like of American cities, has the highest homicide rate of any large U.S. city.

Those high-crime communities weren’t created overnight: the effects of mass joblessness and concentrated poverty are felt mainly in the long run, not in the short. At the very least, this means that any complacency about the future is misplaced. The longer we remain mired in an economic crisis that strikes hardest the communities that are already most devastated, the more we boost the threat of rising crime—and newly swelling jails and prisons—down the road. It’s impossible to know for certain whether that threat will materialize. But the continuing obliteration of legitimate opportunities for the urban young, and the decimation of support services for vulnerable people, should make us very worried.

Nothing in the realignment plan begins to address this looming emergency. Perhaps it would be asking too much of the plan to take these issues into consideration: the state needed to do something quickly, and in some ways the response it has come up with can be seen as an attempt to make the best of an impossible situation. But the question of what to do about the deepening crisis of California’s most crime-ridden communities has largely fallen off the state’s political radar screen, as it has in the nation as a whole.

At best, the realignment will stimulate honest efforts to “reintegrate” a deeply damaged population into communities with a diminishing capacity to absorb them in productive ways. At worst, the state will hand over offenders with deep and extensive problems to the not-so-tender care of ravaged local public-sector institutions, which have never effectively handled those problems and will almost certainly be less able to do so with decreased resources and increased workloads. There are real alternatives. But they require a new kind of thinking and a new level of political will.

Elliott Currie is Professor of Criminology, Law, and Society at the University of California, Irvine.

Image: California Men’s Colony in San Luis Obispo (MrPlow5, Flickr creative commons, 2011)