Penny-Wise and Pound-Foolish

The Mayor of Newark blogs about a reentry initiative in New Jersey, emphasizing that the initiative is bipartisan and builds on broad collaboration between different political actors.

Some are quick to point out that certain provisions of the state bills would cost money at a time of tremendous fiscal strain – adding millions to the state budget in the near term. Many of these people are using this understandable concern to reflexively oppose this legislation. However, the cost of doing nothing simply leaves the tremendous expense of arrest, adjudication and incarceration to fester and grow larger and more burdensome in coming years.


We cannot be penny-wise and pound-foolish. The time to act is now. If implemented effectively, the bills not only have the ability to pay for themselves but can provide significant savings to taxpayers in future budget years. This is not fantasy or fiction; the proof can be seen in the active bipartisan success so evident in Newark right now.

Prisons and Budgets

Today’s NYTimes editorial “Prisons and Budgets” at http://www.nytimes.com/2010/01/04/opinion/04mon3.html?ref=opinion lauds state legislatures for corrections policy changes with positive fiscal impact. The piece calls 3-Strikes “overly harsh” and calls the Florida law mandating serving certain percentages of sentences “dubious corrections policy and terrible fiscal policy.”

My favorite citation is their use of the ACLU National Prison Project’s new report “Michigan Breaks the Logjam: A New Model for Reducing Prison Populations.” Michigan reduced its prison population by over 8% in about half a year, primarily through justice reinvestment. This leads me to think about how many more teachers, students, doctors, nurses, patients, etc. California could afford to subsidize, were we to reduce our state prison population by as much as 8%.

Death Row Expansion Halted!

California Treasurer Bill Lockyer is halting the issuance of bonds to pay for the Death Row expansion endorsed earlier this year by Governor Schwarzenegger. The delay is due to the efforts of Assemblyman Jared Huffman and Senator Mark Leno. The Marin Independent Journal reports:


Huffman and Leno. . . sent a letter to Lockyer on Wednesday asserting that sale of the bonds would be illegal until resolution of litigation challenging Gov. Arnold Schwarzenegger’s veto of budget language on conditions for financing of the project.

The language prohibited issuance of bonds until the California Department of Corrections and Rehabilitation determined that it could lawfully double-cell condemned inmates; federal court litigation on prison overcrowding currently before a three-judge panel was resolved; and the correction department completed California Environmental Quality Act analyses for any modifications to the project.

Huffman said the governor had no authority to use the line-item veto on policy language.

This delay may be good news for death penalty activists, but its long term impact on the death penalty will depend, to a large extent, on the next administration and on the 2010 elections.

State Plan a Mix of Releases and Correctional Expansion

I’ve just finished going over the CDCR population reduction plan in all its more-than-100 page glory (including the depositions). For those who rejoiced in the original August order to reduce population, the plan will be a disappointment; but even those who found the panel’s reasoning problematic will find little cause for rejoice.

Here are the essentials: The state stands behind the measures it proposed previously, in the noncompliant plan submitted September 18. Those included credit enhancements for good behavior, a certain quota of inmates housed in out-of-state facilities, more reliance on community corrections, sentence commutation, and parole reform (including the recently approved summary parole for nonviolent offenders).

In addition, the state proposes to seek changes to legislation that impedes broader use of the out-of-state option, privatization, shifting jurisdiction to county jails, and accelerated construction of prisons. It does so while expressing doubts about the federal panel’s authority to require violation of state laws; according to the state, therefore, these measures are necessary to bring the plan to the 137.5% reduction level.

The depositions provide concrete numbers regarding the reduction rates.

Jay Atkinson (Chief of Offender Information Services Branch) estimates that the California Community Corrections Performance Incentives Act of 2009 generates a system of rewards for probation success. Implementing it will achieve an approximate reduction of 1,915 inmates. In addition, releases based on good behavior credits will yield 2,921 reduction; raising the threshold of grand theft from $400 to $950 will yield a 2,152 reduction; and programs for alternative custody for low-risk offenders will achieve a 4,800 reduction. My summary: 11,788 total reductions. Atkinson cannot provide estimates for the reductions resulting from parole reform, but those may yield additional reductions.

Scott Kernan (Undersecretary of Operations) states that, by approximately January 2011, CDCR anticipates housing a total of 10,468 inmates at out-of-state facilities. In addition, it will push to remove an existing clause that mandates termination of the out-of-state program. Changing this clause will allow the state to expand its out-of-state program by 1,500 beds by December 31, 2011. In addition, the state plans to pursue privatization options more aggressively (the out-of-state options themselves are privatized.) Contracting with private facilities will provide an additional 5,000 beds for inmates removed from state institutions. Finally, CDCR will engage in a complicated game of musical chairs, which will involve shifting inmates around, switching between male and female inmates in some institutions, closing down 3 male facilities, and creating more community correctional facilities. This option will yield no more than a 800 inmate reduction. Total seems to be 17,768. Combining the two statements, the grand total seems to be a 29,556 reduction.

I haven’t checked up the math on the additional 10,000 reduction, but the plan suggests that this will be achieved through a combination of programs: commutation sentences, changes in juvenile facilities, and other measures that were mentioned in the original plan.

***

As can be seen by these two contrasting depositions, the state is pursuing two “prongs” of overcrowding solutions: the type that the court wished to encourage – namely, early releases, parole reform, and sentencing reform – and the type that the court will be very disappointed in, such as increasing prison construction and shipping more inmates out of state. Interestingly, these measures are predicted to yield more reductions than shuffling people within the existing incarceration options. The plan has, therefore, a bit of a “split personality”. Some of it expands the penal monster and some of it works to decrease it (in the spirit of humonetarianism.) I assume the court will be rather dismayed by this. Leaving the reduction methods up to the state opened the door for the state to cling to the old solutions of expansion, contraction, and exporting Californians to other states; but since the panel was convened for the sole purpose of solving the problem of constitutional violations in health care, its ability to have a general say regarding the system’s size is rather limited.

***

There is another issue which, while not directly yielding reductions, merits attention. At the panel’s request, the remaining depositions describe the impact of cuts to rehabilitative programs on prison conditions.

Sharon Aungst (Chief Deputy Secretary of the Division of Correctional Health Care) states that the decrowding will not improve treatment for the mentally ill, but the cuts in rehabilitative programs will have an adverse effect on weekly activities for mentally ill patients.

Robert Ambroselli (Acting Director, Division of Adult Parole Operations) estimates that the parole sites and programs have served a combined 18, 449 people, though some of these may be repetitive (enrolled in more than one programs). The expected $41,000,000 reduction in operational budget will lead to delays in finalizing and activating new sites.

Finally, Elizabeth Siggins (Acting Chief Deputy Secretary for Adult Programs) states that the budget cuts will lead to a significant reduction in treatment slots. 4,633 inmates (a 5000 reduction) will be benefitting from community-based aftercare treatment. Substance abuse programs will be available to 1588 inmates (4000 reduction). There will not be changes to in-custody drug treatment, the parolee service network (serving 863 inmates) and the female offender treatment and employment program (serving 412 inmates). 80,000 parolees will be getting employment opportunities through California New Start.

***

These are grim news indeed. It would appear that, over the next few years, possible gains with regard to health care will be offset by losses in terms of rehabilitative programs. The panel’s program to reform California prisons through the opportunity to intervene in health care seems to have been frustrated by the methods adopted by the state.

A final thing to remember is that the state’s plan is not to be construed as abandonment of its appeal to the Supreme Court. The state consistently repeats, throughout its legal documentation, the right to appeal the order, which it still maintains is erroneous. Given the particulars of the current plan, it remains to be seen whether the Supreme Court will see the panel’s attempt to fix the health care system in a favorable light. It is a sober reminder, though, that judicial review of state institutions is an imperfect and limited solution, and while it has the ability to change policies and practices in ways that are impossible through legislative and administrative channels, its narrow, case-by-case focus may have unpredictable, and disappointing, outcomes.

Sentencing Commission to re-evaluate mandatory minimums

Today’s Wall Street Journal points out that October’s National Defense Authorization Act tasks the U.S. Sentencing Commission with reviewing federal mandatory minimum sentencing. Mandatory minimums, which remove judicial discretion in sentencing, are almost always for drug crimes, and have greatly contributed to the explosion in the federal prison population. This is the first issue I’ve seen the Fraternal Order of Police take a position aligned with Families Against Mandatory Minimums.

When I moved to California from Rhode Island, it had the highest unemployment rate of any state besides Michigan, making sentencing reform a high economic priority. Sure enough, this year the RI General Assembly voted to eliminate mandatory minimum sentencing for drug possession. The state legislature also decided not to return probationers to prison for violations other than the crime of which they were originally convicted. These changes, at the federal and California state level, would take a big chunk out of our corrections crisis.

Partisan Politics


The difficulties in creating sentencing reform in California are better understood when considering the big picture. Yesterday’s Sac Bee included a fascinating piece analyzing lawmakers’ voting patterns, which demonstrates that they are extremely likely to vote with their party. The polarization, argues the piece, has increased in comparison with recent years.

What would be the best strategy to achieve prison decrowding under these circumstances? One possibility, which has yielded some success, is framing the question in terms of savings. Another one would be to implement Governor Schwarzenegger’s decrowding plan as a response to the recent Plata/Coleman court order – a solution that the court has alluded to.
The future may depend on the outcome of the gubernatorial race. Let’s hope that the next governor understands that California’s future depends, to a large extent, on the state — and cost — of its prisons.

The Partisan Paradox: Why No “Texas Correctional Crisis”

It’s always refreshing to take a look at our correctional mess from the outside. Yesterday, Scott Hanson, over at Grits for Breakfast, commented on our crisis, explaining “why Texas didn’t go there“.

Ironically, California may be suffering because it’s trying to confront this problem with a Democratic majority. The turning point for Texas’ prison system came in 2003, when Republicans found themselves in charge of both chambers of the Texas Legislature for the first time since Reconstruction. That year, Speaker Tom Craddick named Ray Allen from Grand Prairie House Corrections chair, and Allen was immediately confronted with projections that Texas’ already full prisons would require billions in new construction to keep up their astronomical growth rate.

[R]educing incarceration by diverting offenders to probation and keeping more of them there until they’re off supervision – became the central strategy Texas employed to reduce incarceration growth. In 2005, Jerry Madden became House Corrections chair and – along with the Democratic Criminal Justice Chairman in the Senate, John Whitmire – sponsored legislation to revamp probation in order to provide more meaningful supervision (especially through reduced caseloads) and alternatives to incarceration, but leaving sentence lengths, at least on the books, alone.

I wonder whether a Republican majority in the CA legislature would be the ticket to resolve this; that is, whether such a majority would have a sense of responsibility for responding to the crisis and therefore come up with good solutions. We have seen quite a few examples of nonpartisan initiatives to save system costs by avoiding death row expansion, legalizing marijuana, and the like. The thing to remember is that the big architects of large-scale historical decarceration efforts have been, traditionally, conservative politicians. I strongly recommend reading Kathlyn Taylor Gaubatz’s interesting book Crime in the Public Mind, which mentions, among many other interesting things:


Few may remember, however, that Ronald Reagan was not always the standard bearer of the get-tough movement. In an account of changes in California’s criminal justice system, Caleb Foote writes that “during Ronald Reagan’s tenure as governor, his administration first ordered the [Adult] Authority, as an economy measure, to reduce prison population by increasing parole release rates, a policy which enabled the state to close one prison and underpopulate San Quentin and some other prisons. Then the Reagan administration, attacked from the southland for being soft on crime . . ., reversed course and ordered the Authority to tighten ship.” We know that the tides of public opinion began their harsh upswing during the years of Reagan’s first governorship, and here is a revelation that his actions as a political leader were not always oriented to a crackdown on crime.

Good morning, and good luck.

BREAKING NEWS: CA Assembly Guts Inmate Release and Sentencing Reform Plan

Yesterday, the CA Assembly made so many changes to the Senate-approved Governor’s plan to release 27,300 inmates and reform sentencing, that it is hardly recognizable. The Chron reports:

The changes would reduce the state’s prison population by about 16,000 inmates instead of 27,000, and would save the state about $325 million instead of $525 million.

Set aside were some of the most controversial parts of the legislation, such as allowing sick and elderly inmates to finish their sentences at home or in community hospitals, where they would be monitored by GPS tracking devices, according to Shannon Murphy, a spokeswoman for Assembly Speaker Karen Bass, D-Baldwin Vista (Los Angeles County).

The bill also put aside plans for creating a sentencing commission to revamp the state’s rules on punishment and parole, an idea backed by many Senate Democrats including President Pro Tem Darrell Steinberg, D-Sacramento. The bill, in its original form, passed the Senate by a 21-19 vote last week.

The original package, negotiated in part by Bass, stalled in the Assembly late last week despite Democrats’ strong majority in the lower house of the Legislature.

The revised bill eliminates changes to some crimes – such as writing bad checks and receiving stolen property – so that they are always charged as misdemeanors. The bill was revised to reset the grand theft threshold to $950, higher than the current $400, which was set in 1982, but significantly lower than the $2,500 that the Senate approved last week.

What’s left in the bill are changes to the state’s parole system so that some low- and moderate-risk offenders would not be subject to parole revocation; allowing certain felons who violate probation to serve time in county jails; and allowing the early release of inmates who complete certain rehabilitation programs such as earning GEDs.

This is, to say the least, very disappointing. We will follow up with a more thorough analysis later in the day. For now, we’ll just point out two things:


1. This is proof that budget-based arguments, without a deep understanding of what is ailing the system, can only take us so far. OldThought is still around, and unsubstantiated public safety arguments can still win the day.

2. If the Prison Law Office needs any proof that the state is incapable of carrying out the appropriate and necessary decrowding plans, for the purposes of the Plata/Coleman appeal, this is it.

State Senate Approves Governor’s Plan and Sentencing Commission Bill

Yesterday, the State Senate approved the Sentencing Commission Bill, by a narrow margin of 21 to 19 voters. The discussion was quite polarized, with concerns about public safety raised by Republican lawmakers. The next step for the bill is the Senate Assembly’s approval.

The bill was approved as part of the narrow approval of the broad plan proposed by Governor Schwarzenegger to release 27,300 inmates.

The approved measures – and the savings they entail – are as follows:

— $42 million saved by allowing the early release of inmates who complete certain rehabilitation programs, such as by earning GEDs and taking vocational training classes.

— $134 million saved by reducing the influx of new prisoners by changing some property crimes that now qualify as felonies to misdemeanors. Petty thefts, writing bad checks and receiving stolen property would no longer be charged as felonies. Stealing cars valued at $2,500 or less could be charged as misdemeanors instead of an automatic felony.

— $120.5 million saved by allowing certain inmates to finish their sentences at homes or hospitals under GPS monitoring. Qualifying inmates would need to be at least 60 years old or severely ill and have less than one year to serve.

— $30 million saved by allowing certain felons who violate probation to serve time in county jails instead of having them sent back to prisons.

— $198.5 million saved by changing the state’s parole system so that some low- and moderate-risk offenders would not be subject to parole revocation. Also, certain serious offenders would be eligible for early parole discharge if they successfully complete drug treatment.