BREAKING NEWS: Newsom to Release 8,000 People from CA Prisons

The Chron reports:

Gov. Gavin Newsom is set to announce that he will release approximately 8,000 people incarcerated inside California’s prison system, in a move that comes amid devastating coronavirus outbreaks at several facilities and pressure from lawmakers and advocates.

Prisoner attorney Donald Specter on Friday said the announcement is expected early this afternoon. Specter, who is the executive director of the Prison Law Office, the organization that represents prisoners in a long-running lawsuit alleging inadequate medical services, said the governor’s office advised of the details.

“We certainly appreciate the effort from the administration to reduce the prison population,” Specter said. “We still remain concerned that there’s not enough space, especially in places like Vacaville and Folsom to house people safely if the virus gets into those institutions.”

Across state prisons, 2,286 inmates were confirmed to have active cases of the virus and 31 had died as of Friday morning, according to California Department of Corrections and Rehabilitation. Staffers with active cases of the virus totaled 719.

Specter said the releases will come on a rolling basis, and they’ll include both people who were scheduled to be freed soon as well as people at high risk for serious complications if they contract the virus.

Those bound for releases include about 700 people from high-risk prisons like San Quentin, Folsom and the California Medical Facility, Specter said, as well as people who are in hospice and appropriate for release. State prisons have about 6,500 people who are high risk medically for COVID-19 and low risk for recidivism, he said, “and they’re going to start releasing some of them.”

The move will expedite the governor’s review for people who were granted parole, which can traditionally take about six months, Specter said.

Prison officials announced Thursday night that they would provide 12 weeks of credit to every inmate eligible for release who had not been found guilty of a serious rule violation between March 1 and July 5. The policy, adopted because prisons have shut down their credit-earning programs during pandemic, could benefit as many 108,000 people.

With the reduced sentences, about 3,100 inmates would reach their earlier possible release date, officials estimated, with those releases set to begin Aug. 1.

Too few and too late, but it’s a start. The advocates, activists, and elected officials are making a difference. We must press on to stop this human rights crime.

Triggers and Vulnerabilities: Why Prisons Are Uniquely Vulnerable to COVID-19 and What To Do About It

covid-19 virus illustration
When I reviewed the causes and effects of the 2008 Financial Crisis for Cheap on Crime, I relied partly on a series of lectures given by Ben Bernanke, Director of the Federal Reserve. As he explained it, the Great Recession was a case of “triggers and vulnerabilities:”

The triggers of the crisis were the particular events or factors that touched off the events of 2007-09–the proximate causes, if you will. Developments in the market for subprime mortgages were a prominent example of a trigger of the crisis. In contrast, the vulnerabilities were the structural, and more fundamental, weaknesses in the financial system and in regulation and supervision that served to propagate and amplify the initial shocks. In the private sector, some key vulnerabilities included high levels of leverage; excessive dependence on unstable short-term funding; deficiencies in risk management in major financial firms; and the use of exotic and nontransparent financial instruments that obscured concentrations of risk. In the public sector, my list of vulnerabilities would include gaps in the regulatory structure that allowed systemically important firms and markets to escape comprehensive supervision; failures of supervisors to effectively apply some existing authorities; and insufficient attention to threats to the stability of the system as a whole (that is, the lack of a macroprudential focus in regulation and supervision).

The distinction between triggers and vulnerabilities is helpful in that it allows us to better understand why the factors that are often cited as touching off the crisis seem disproportionate to the magnitude of the financial and economic reaction.

Bernanke’s distinction between triggers and vulnerabilities is useful to the current crisis as well. Today we learned that a man behind bars in Chino is the first acknowledged COVID-19 casualty in CA prisons, and that 59 of his fellow prisoners have tested positive. As of today, we’ve also seen the first positive test in the San Francisco jail system. It’s all going to mushroom from here.
Several of my colleagues (see especially here and here) are making the important argument that the spread of COVID-19 in prisons is a very big deal, to the point that not addressing it properly could negate much of our social distancing effort outside the prison walls. But what is it about prisons that make them such an effective Petri dish for the virus to spread?
Think of COVID-19 as the trigger, and think of the disappointing–even shocking–reluctance of federal courts to do the right thing as another trigger. These triggers operate against a background of serious vulnerabilities, some of which preceded the decision in Brown v. Plata and some of which emerged from it.
First, what gets called “health care” in CA prisons really isn’t. Litigation about it took a decade and a half to yield the three-judge order to decarcerate, and until then, horrific things were happening on a daily basis. Despite ridiculous expenses, every six days, a CA inmate would die from a completely preventable, iatrogenic disease. The cases that spearheaded Plata, including the story of Plata himself, were emblematic of this (see Jonathan Simon’s retelling of these stories here.)
It is important to think again of what it was, exactly, about overcrowding that made basic healthcare impossible to provide. First, medical personnel were, and still are, difficult to hire and retain. California has gigantic prisons in remote, rural locations, and it is difficult to attract people willing to work healthcare in these locations. Housing, clothing, and feeding so many people in close proximity meant not only that violence and contagion were more likely to occur, but also that the quality of these things–diet, especially, comes to mind–was extremely low. Every time someone had to be taken to receive care, the prison would have to be in lockdown, which meant more delays and big administrative hassles. The administration and pharmacies were total chaos. People would wait for their appointments in tiny cages for hours without access to bathrooms. People’s medical complaints were regularly trivialized and disbelieved–not, usually, out of sadism, but out of fatigue and indifference in the face of so much need. Moreover, the scandalously long sentences that a fourth of our prison population serves mean that people age faster and get sick, and make the older population an expensive contingent in constant need of more healthcare and more expense.
The outcome of the case–reducing the prison population from 200% capacity to 137.5% capacity–was mixed in terms of the healthcare outcomes. But it also yielded four important side-effects. First, it exposed the inadequacy of county jails for dealing with a population in need of both acute and chronic healthcare. Second, it created big gaps in service between counties that relied more and less on incarceration. Third, because the standard was the same for the entire prison system and relied on design capacity (rather than, following the European model, on calculating minimum meterage per inmate), it yielded some prisons in which overcrowding was greatly alleviated alongside others in which the overcrowding situation was either the same as, or worse than, before Plata. And fourth, because of the way we dealt with Plata, we became habituated to resolving overcrowding with cosmetic releases of politically palatable populations (i.e. the “non-non-nons”) rather than addressing a full fourth of our prison population–people doing long sentences for violent crime and getting old and sick behind bars.
So, now we face this trigger–COVID-19–with the following vulnerabilities:
  1. We still have a bloated system, because the Court used the wrong standard to create minimal space between people for their immediate welfare.
  2. We’re now dealing with lots of small systems that answer to lots of different masters and have different priorities and ideologies.
  3. We already have a lousy healthcare system behind bars, which could not be fixed even with the release of more than 30,000 people, and that was *without* a pandemic going on.
  4. We have gotten used to doing a “health vs. public safety” equation that doesn’t make sense and biases us against people who committed violent crimes at the wrong time and for the wrong reasons. In fact, we are so married to the idea that we can’t second-guess mass incarceration, that the newest preposterous suggestion has been to protect people from COVID-19 by… introducing private prisons into the mix.
Stack these vulnerabilities against the trigger, and what you have is an enormous human rights crisis waiting to happen in the next few weeks. It’s already started.
And if you wonder whether this can be contained in prisons, well, it can’t. Guards don’t live in prison, obviously; prison staff has already been diagnosed positive in multiple prisons. Stay at home all your like, wear your home-sewn masks all you wish; we have dozens of disease incubators in the state and apparently very little political will do do anything to eliminate them.

What should we do about it? Follow the excellent roadmap that Margo Schlanger and Sonja Starr charted here, primarily point four: get over your icky political fears about public backlash and let older, sicker people out–even if they committed a violent crime twenty or forty years ago. If you are a governor or a prison warden with some authority to release people, do as Sharon Dolovich implores in this piece and use your executive power to save lives.

Gov. Newsom, Please Release More Prisoners to Prevent CDCR from Becoming a Mass Grave

Dear Gov. Newsom,

Many thanks for your tireless work on behalf of Californians in their hour of need. I can only imagine the multiple emergencies on your agenda and the many proverbial fires you must put out to “flatten the curve” and give our emergency services a fighting chance against the COVID-19 pandemic.

I appreciated learning about your recent commutations, as well as about the plans you have put in place to release 3,500 prisoners from CDCR custody. It is a good start, but, unfortunately, it will likely be merely a drop in the bucket.

Less than a decade ago, the Supreme Court found healthcare conditions at CDCR so appalling that, every six days, a person behind bars died from a preventable, iatrogenic disease. The Court attributed this massive failure to deliver anything that could be even remotely called “health care” to overcrowding in prisons, and supported the federal three-judge panel recommendation to release approximately 30,000 prisoners. That has somewhat improved the situation, but even with massive efforts toward a turnaround on the part of the federal receiver, we are still seeing woefully deficient healthcare–interminable lines and wait times, people treated in cages in which they have to wait for hours, “group therapy” consisting of a semicircle of cages.

And that’s without a pandemic going on.

Gov. Newsom, our prisons are a Petri dish for contagion and disease. It is impossible to provide minimal health care to this many people with a highly contagious virus on the loose.

The Public Policy Institute of California, relying on CDCR statistics, reports that 23% of California inmates are 50 or older. Aging prisoners may be contributing to California’s prison health care costs—now highest in the nation. The state spent $19,796 per inmate on health care in fiscal year 2015, according to the Pew Charitable Trusts. These costs were more than three times the national average and 25% more than in 2010. Moreover, many California prisoners serve extremely long sentences: Approximately 33,000 inmates are serving sentences of life or life without parole. Another 7,000 are “third strikers,” fewer than 100 of whom are released annually after serving about 17 years. Fewer than 1,000 of these inmates are released every year, typically after spending two or more decades behind bars.

Isn’t decades in prison enough? How much retribution or deterrence do we still need for people serving sentences of 30, 40, or 50 years, that we must keep them behind bars for longer in the face of a lethal pandemic?

Robust research about aging in prison confirms that people age much faster behind bars than they do on the outside, and they are much more vulnerable to disease–partly because of confinement conditions and partly due to faulty health care.

The scale of releases we should contemplate is in the tens of thousands, not in the thousands. If you do not act now, within a few short weeks, the CDCR will become a mass grave.

Please, don’t let the current litigation be the only push to do the right thing. You have done the right thing so many times–as Mayor of San Francisco and as our Governor. The prisoners are Californians, too. They can’t vote from prison, but they are your constituents and you must consider their welfare.

Please, act now, before thousands of lives are lost.

Readers, please join this open letter by signing my Change.org petition.

Are CA Prisons Really Less Crowded?

Hello, Dear Readers,

It’s been a while since I updated this blog, and it’s time for an update as well as a substantive post. I am hard at work trying to finish the manuscript of Yesterday’s Monsters, my new book, which examines the parole hearings of the Manson Family–and am doing so as the new mom of a (delightful) infant, so my days are packed! In addition, I became interested in a variety of topics beyond California corrections, as this administration provides us daily reminders of how bad things can be if we don’t actively stand guard on our civil rights. Local readers probably know I’ve been appearing on TV and on the radio several times a week discussing immigration reform, the Mueller investigation, various excesses and civil rights abuses, and the possibilities and implications of an impeachment campaign. I also find that my opinions on various issues, ranging from the #metoo cultural moment to state support for parenting, exceed the boundaries of our topic, and am therefore hesitant to share them here. Would love to hear thoughts in the comments.

In the meantime, I received a fascinating email from our reader Nick Jones, who has taken an interest in population counts in CA prisons. As our readers recall, under the Plata decision, CDCR was under obligation to reduce the population in CA prisons to 137.5% capacity, and complied with the order. But things are, apparently, not what they seem.

CDCR publishes its monthly population report here, but the format they use does not allow for any sort of manipulation or statistical testing. Nick very graciously, out of his curiosity and the goodness of his heart, created an online tool to parse out the data, and we now have a .csv file containing the population since 1996, broken down by prison. Nick is offering the file freely to me and you under a digital commons license and you can find it here. Thank you, Nick!

Analyzing the data brought Nick to a disturbing conclusion. Yes, technically the system as a whole is not overcrowded beyond the Plata requirement. But the general number in all prisons combined hardly matters when the very reason for the Plata decision was that it is impossible to provide minimal medical treatment when there’s overcrowding at the individual prison level. And indeed, no less than 15 of California’s 33 correctional institutions are beyond the Plata crowding mandate:

It is interesting to note that among the least crowded prisons (hovering around 100% capacity) are both Pelican Bay and Corcoran, which might be attributed to the Ashker settlement. But does that mean that people who were previously held in the SHU are now held in general population in other institutions? Yes, holding people in solitary is inhumane, but how is holding them in overcrowded facilities a solution?

Alternatively, it might be the case that the 15 overcrowded institutions feature new entries. In which case, why are we so bad at judging where to send people based on capacity? Is there anything distinctive about the geography of the overcrowded prisons? Their security classification? I think this calls for deeper thinking, and will continue to work with the data and reflect on what this means.

If any prisoner rights litigators are reading this post, it seems to me that this result is NOT what the Supreme Court intended when it set the 137.5% upper limit in Plata. If anyone wants to talk about more research on this, and possibly legal recourse on behalf of the folks who are doing time in the top 15, please reach out to me via email.

Not Long Sentences or War on Drugs: Problem Is Prosecutorial Discretion

My colleague John Pfaff from Fordham (who is quoted extensively in Chapter 1 of Cheap on Crime) is an economist, and has tested the various explanations given for mass incarceration. His conclusion: the main cause for prison growth was not an increase in sentencing or the war on drugs. The problem is prosecutorial discretion.

“I understand where they come from. It’s true that legislators have passed a lot of new, tougher sentencing laws over the past 30 or 40 years. And it’s true that we have increased the attention paid to drugs. But in the end, there are other things that play a much, much bigger role in explaining prison growth. The fact of the matter is in today’s state prisons, which hold about 90 percent of all of our prisoners, only 17 percent of the inmates are there primarily for drug charges. And about two-thirds are there for either property or violent crimes.”

. . . 

“What appears to happen during this time—the years I look at are 1994 to 2008, just based on the data that’s available—is that the probability that a district attorneys file a felony charge against an arrestee goes from about 1 in 3, to 2 in 3. So over the course of the ’90s and 2000s, district attorneys just got much more aggressive in how they filed charges. Defendants who they would not have filed felony charges against before, they now are charging with felonies. I can’t tell you why they’re doing that. No one’s really got an answer to that yet. But it does seem that the number of felony cases filed shoots up very strongly, even as the number of arrests goes down.”

New Jails: If You Build It, They Will Come?

Yesterday’s interesting L.A. Times editorial addresses the plan to build a new jail in Los Angeles, which prison activists have been resisting for a long time. When I visited Los Angeles at the ACLU of Southern California’s invitation, our conversation about the plan was fraught with misunderstandings. The Sheriff’s Office’s position was that a new jail was necessary because conditions in the existing jail were horrific, particularly with regard to treatment for mentally ill inmates.

Can’t argue with them on that point, of course; the County Jail is America’s largest psychiatric ward. Indeed, recently the authorities have finally started to question the wisdom of jailing the mentally ill and come up with alternatives, but there’s still a long way to go. There are some things that the jail gets right, such as when they properly use strategic segregation, as Sharon Dolovich explains here and here. But some of its effects are harmful and problematic, and the need for change is something we can all agree on.

But what sort of change? Yesterday’s editorial posits the plan as follows:

The Los Angeles County Board of Supervisors spent the last decade putting off those questions. Then, in May, it adopted a $2-billion plan to demolish the complex and build a new 4,800-bed downtown jail designed around the clinical needs of the large number of inmates with mental health and substance abuse problems, as well as the security requirements of inmates who pose a high risk of harm to others. Also part of the plan is a 1,600-bed campus-like women’s jail in Lancaster.

The supervisors chose the plan from among several presented by Vanir Construction Management Inc., a firm in the business of building such facilities. The price tag makes the construction project the most expensive in county history.

The updated design would certainly be an improvement over the current jail, yet it remains rooted in questionable estimates and bygone practices. It ignores the conclusions of a 2011 jail population study commissioned by the board, then for all practical purposes forgotten.

Rather than go with the spirit of Prop 47 and reduce incarceration, this plan may perpetuate the problem. The editorial goes on to say:

In pushing forward with a new jail that could keep as many people locked up as were, say, two years ago, the Board of Supervisors is in effect making an astounding policy statement: The current jail population is the correct one, despite the theoretical embrace of mental health diversion, the ability to authorize some no-bail, pretrial releases, and the recent reduction of sentences for some crimes. And the $2 billion — or perhaps twice that, when including bond interest — should all be spent on incarceration rather than more effective, and cost-effective, alternatives.

I tend to think of prison construction like road construction: traffic congestion increases with road development because it creates an incentive for more private vehicle transportation. This is why activists oppose the new plan. Let’s solve the overcrowding problem by, well, not overcrowding the jail with people who are far better off treated in the community for their underlying mental health problems.

Plata/Coleman Sequel: We Can’t Release Inmates – We Need Their Labor!

If you’ve followed the litigation in Plata/Coleman from the mid-2000s forward, you probably think you’ve seen it all: the dawdling, the evasion maneuvers, the political blackmail. But today I have something really special for you. As you might know, the court has ordered a special parole regime to ensure early releases. What did the Attorney General’s office have to say? The L.A. Times reports:

Most of those prisoners now work as groundskeepers, janitors and in prison kitchens, with wages that range from 8 cents to 37 cents per hour. Lawyers for Attorney General Kamala Harris had argued in court that if forced to release these inmates early, prisons would lose an important labor pool.

Yes, you’ve read it right. The Attorney General’s office now opposes early releases BECAUSE THOSE WILL DEPRIVE IT OF A CHEAP LABOR FORCE. The prisons can only function if prisoners work in them, so… we need to keep them in.

I’m sure I don’t need to explain why this is a shockingly conscienceless rationale to keep people incarcerated and pay them abysmal wages, and much as I resist the unsubtle comparisons made in The New Jim Crow, this really, really reeks of postbellum resistance. Ugh. Shame on you, Ms. Harris.

Book Review: Mass Incarceration on Trial by Jonathan Simon

Hidden from sight and forgotten from mind, American prisons in the last forty years have been horrific Petri dishes for medical neglect, interpersonal cruelty, and unspeakable conditions. California, which incarcerates the largest number of inmates (albeit not the largest per-capita), has been particularly notable for its abysmal incarceration practices, so much that, when commenting about his first impression of supermax institutions, Judge Thelton Henderson said to criminologist Keramet Reiter, “what was surprising to me was the inhumanity of the thing.” Jonathan Simon’s new book offers the general public a sobering look into California prisons through the prism of federal court decisions, which encourages humanism and empathy and does not allow the reader to look away.

 The book tells the story of several federal court decisions that tackled, head-on, the crux between mass incarceration and prison conditions. It begins with Madrid v. Gomez (1995), which exposed the conditions at supermax institutions and critiqued their application to the mentally ill, and proceeds with Coleman v. Wilson (2009) and Plata v. Schwarzenegger (2009), which addressed, respectively, serious mental and physical health care neglects, culminating in the Supreme Court decision in Brown v. Plata (2011), which affirmed the connection between the mass incarceration project and its outcome—extreme prison overcrowding—and the conditions behind bars. Simon’s account of the decisions, and the horrific abuse and dehumanization that brought them about, highlights two main themes. The first is the nature of American incarceration (and California incarceration in particular) as a veritable human rights crime of massive proportions, pulling it out of the American tendency to view things through an internal, exceptionalist lens. The second is the inherent connection between mass incarceration and prison conditions, which are frequently discussed separately in academia and public policy. To Simon, both are manifestations of an overall correctional mentality of “total incapacitation”: a systemic fear of crime and blanket assumption of dangerousness, coupled with insecurity about the ability to correctly gauge risk, which leads to indiscriminating incarceration of high-risk and low-risk individuals for lengthy periods of time without consideration of the conditions of their incarceration, or of the logistics necessary for their humane confinement. The court decisions reviewed in the book, argues Simon, signal a departure from this ideology, which he defines as a “dignity cascade”: a willingness to relate to the inmates as human beings who are entitled to more than “bare life”, but to personal safety, health, and human company.
Indeed, Simon’s book itself can be seen as an important contributor to a “dignity cascade”. Written in an engaging, accessible style, and providing the personal stories of plaintiffs in prison condition cases, Simon humanizes the individuals involves and evokes empathy and care for their preventable, horrible plight, while still making the bigger point that the violations are a systematic problem rather than isolated occurrences. While the book does not clarify the extent to which Simon attributes intent, or design, to the correctional officials, it certainly drives home the point that cruelty is the rule, rather than the exception, and the need to change that through a deeper commitment to treating humans with dignity and respect regardless of their transgressions.

There are a few places, however, in which Simon and I part ways. One of them is in his historical account of the path to total incapacitation, which paints the rehabilitative period in California corrections in what I think are overly rosy hues—especially when he ties the medical approach to incarceration to the eugenics movement. I also think that Simon gives the court decisions, which are undoubtedly important, too much significance in the overall scheme of California corrections. I wish I could be persuaded that these few decisions, the most recent of which and the focal point of the book was decided 5:4, were powerful enough to create a veritable “dignity cascade”. The book cites extensively dignity-promoting language from Justice Kennedy’s opinion in Plata, but does not include the parts in Justice Scalia’s dissent in which he referred to the inmates as “specimens”—a shameful opinion that I find hard to ignore with four Supreme Court Justices behind it. Even federal judges who are hailed as champions of inmate rights don’t always make decisions that promote dignity; in the fall of 2013, Judge Henderson (of Madrid v. Gomez fame) cleared the path to force-feeding inmates in solitary confinement who were protesting against indefinite segregation. Moreover, attributing the change in California—namely, the Criminal Justice Realignment—solely to the decision in Plata ignores the lengthy political machinations behind the Criminal Justice Realignment, which were driven by budgetary concerns and by other pressures as well as by the court’s decision. This is particularly problematic given the state’s acrobatic wiggling out of responsibility and its inability, and unwillingness, to follow up on the decision, almost to the point of contempt of court. While the language of the opinions themselves is important and meaningful, I wish we were offered more political and legal backstage access to the litigation, as well as more credit to the grassroots activism of inmates themselves, included but not limited to the hunger strike.
While I am less optimistic than Simon about a veritable transformation of public opinion about the mass incarceration project through federal court decisions, I find his call for dignity and for acknowledgment of the vast human rights violations incredibly inspiring, and like him, and anyone invested in the promotion of human dignity, I hope to see the spirit of John Howard’s progressive prison reform, and of the 1960s Warren Court decisions, channeled into this new era of prison litigation. After reading Mass Incarceration on Trial, no one can remain in a state of denial or indifference to the plight of fellow human beings, and this book is an important contribution not only to their dignity, but also to our own.

New Bill Proposes Allowing Counties to Import/Export Inmates

One of the declared purposes of the Realignment was to benefit from the added rehabilitative value of doing time within one’s community, close to one’s family and social network, and in the context of one’s future housing and job opportunities upon release. But this concept turns out to be more malleable than we might’ve thought in 2011. A new bill, AB 1512, aims at allowing counties to import/export inmates from/to other counties. The introduction to the bill elaborates:

Existing law, until July 1, 2015, authorizes the board of supervisors of a county, where, in the opinion of the county sheriff or the director of the county department of corrections, adequate facilities are not available for prisoners, to enter into an agreement with any other county whose county adult detention facilities are adequate for and accessible to the first county and requires the concurrence of the receiving county’s sheriff or the director of the county department of corrections. Existing law also requires a county entering into a transfer agreement with another county to report annually to the Board of State and Community Corrections on the number of offenders who otherwise would be under that county’s jurisdiction but who are now being housed in another county’s facility and the reason for needing to house the offenders outside the county.

This bill would extend the operation of those provisions until July 1, 2020.

Existing law, operative July 1, 2015, authorizes a county where adequate facilities are not available for prisoners who would otherwise be confined in its county adult detention facilities to enter into an agreement with the board or boards of supervisors of one or more nearby counties whose county adult detention facilities are adequate for, and are readily accessible from, the first county for the commitment of misdemeanants and persons required to serve a term of imprisonment in a county adult detention facility as a condition of probation in jail in a county that is party to the agreement. Existing law, operative July 1, 2015, requires these agreements to provide for the support of a person so committed or transferred by the county from which he or she is committed.

This is not a particularly original solution to jail overcrowding. After all, we already export thousands of CA inmates to other states, where they are housed in private facilities. Compared to the uprooting and difficulties of out-of-state incarceration, this is really small potatoes. On the other hand, at least with state prisons there was no pretense of trying to rehabilitate people close to their communities. California is a very large state; a family visit to Corcoran or Pelican Bay requires many, many hours of driving from the Bay Area. Large scale import/export of inmates by counties wishing to utilize their facilities to improve their budgets works against the idea of local justice, frustrating one of the purposes of Realignment.

UPDATE: CURB has circulated a petition against the bill. 

Rolling Back Realignment

Yesterday, Assemblymember V. Manuel Perez introduced AB 1449, also to be known as the Realignment Omnibus Act of 2014. The bill, if passed, would significantly regress the achievements of realignment and increase overcrowding in state prisons. Here’s what it purports to do:

(1) Under existing law, certain specified felonies are punishable by imprisonment in a county jail for 16 months, or 2 or 3 years or, where the term is specified, for the term described in the underlying offense. Notwithstanding these provisions, existing law requires that a sentence be served in state prison where the defendant has a prior or current conviction for a serious or violent felony, has a prior felony conviction in another jurisdiction that has all of the elements of a serious or violent felony, is required to register as a sex offender, or has an aggravated white collar crime enhancement imposed as part of the sentence.

This bill would additionally require a sentence to be served in the state prison when the defendant is convicted of a felony or felonies otherwise punishable in a county jail and is sentenced to an aggregate term of more than 3 years.

(2) Existing law requires that all persons released from prison after serving a prison term for a felony, be subject to postrelease community supervision provided by a county agency for a period of 3 years immediately following release, except for persons released after serving a term for a serious felony, a violent felony, an offense for which the person was sentenced pursuant to the 3 strikes law, a crime where the person is classified as a high-risk sex offender, or a crime where the person is required to undergo treatment by the State Department of State Hospitals because the person has a severe mental disorder. Existing law requires these persons to be subject to parole supervision by the Department of Corrections and Rehabilitation following release from state prison and the jurisdiction of the court in the county in which the parolee is released, resides, or in which an alleged violation of supervision has occurred.

This bill would also require any person who is released from prison who has a prior conviction for any of the above crimes to be subject to parole supervision by the department and the jurisdiction of the court in the county in which the parolee is released, resides, or in which an alleged violation of supervision has occurred.

(3) Existing law, the Postrelease Community Supervision Act of 2011, requires certain inmates released from state prison to be subject to 3 years of supervision by a county agency. The act provides that if the supervising county agency has determined, following application of its assessment processes, that authorized intermediate sanctions are not appropriate, the supervising county agency is required to petition the revocation hearing officer to revoke and terminate postrelease supervision of the inmate. Existing law allows the revocation hearing officer to order the person to confinement in a county jail for a period not to exceed 180 days, among other sanctions. This bill would, if the person has been found to have violated the conditions of postrelease community supervision on 2 or more prior occasions, allow the revocation hearing officer to revoke and terminate postrelease community supervision and order the person to confinement in the state prison for a period of one year.

What this means, in plain speech, is that the definition of “non-non-non” offenses, which now trigger judicial discretion to sentence a person to jail or to mandatory supervision, will dramatically change, sentencing people who received longer prison sentences to state institutions. That may not be all tragic, as many jails are very poorly equipped to handle people who are sentenced for long periods; but many of those folks shouldn’t go in for such long sentences in the first place, and this would only solidify that.

It also means that the idea behind realignment, to supervise people locally in their communities, will be rolled back, and state parole will receive some of the power it lost back from county probation departments, some of whom did a stellar job retooling supervision as an instrument of reentry and hope.

This is a very disappointing bill, and for your good deed of the day, please call your representatives in the Assembly and Senate and tell them how you feel.