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.

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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.

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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.

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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.

Nixonland Mentality Wins the Day: Assembly Decision a Bitter Disappointment

Yesterday’s Assembly decision, emptying much of the initiative to reform our broken system from its content and neutralizing any healthy effect it would have on prison population, is not only a disappointment; it is also a bitter reminder that, while cost-related arguments have the potential to bring issues to the forefront of public discourse, they can’t always carry the day against the older genre of arguments, consisting of unsubstantiated moral panics and political hysteria.
It was a sobering experience to read this morning’s paper, which, in addition to these disappointing news, included a report on the unveiling of a hideous crime: kidnapping, rape, and a nightmarish “compound” where the alleged perpetrator kept his victims. Beyond the immediate horror at these events, my concern is that such abnormal, outlier experiences are perceived, and raised, as the norm, feeding our fear and insecurity.
“Crime” is a generic name for a large universe of phenomena that are very easily distinguishable from each other. The Garridos of this world are very different from the vast majority of imprisoned Californians; for every Phillip Garrido there are tens of thousands of arrestees, inmates and parolees whose property and drug crimes are closely linked with the environmental and spatial dimensions of their lives. Yes, there is some free choice and rational calculation in all of this, and the best path out of prison life must include a certain component of assuming responsibility (a little about this in a following post this weekend); but these choices exist in a universe in which not everyone is offered the same set of alternatives. When the limited opportunities contribute to crime, we should be thinking about providing opportunity, in tandem with requiring responsibility. The key is to understand that the answer to crime needs to be more tailored to suit a particular situation or social reality. There is no “one-size-fits-all” answer to crime. And certainly, shaping our response to crime based on the demons we hear about, perceive, and sometimes create, will not generate anything we will be pleased with in the long run.
Who, and what, poses a risk to public safety? What are we afraid of? Those are two different questions. The former requires hard evidence and the willingness to accept the answers we might not have assumed. The latter, unfortunately, is what has been informing criminal justice policy since the Nixon Era. Our budget woes had the potential to shake us out of indifference and generate a real change. The crisis brought together lawmakers of both parties, police officers, reformers, academics, prison personnel, and Federal judges, all of whom realized that these difficult and trying times were an opportunity to generate real change and turn around the collision course that we have been navigating since the 1970s. I fear this opportunity has been, to a large extent, missed by yesterday’s decision.
For the Governor’s disappointment with the Assembly’s decision, read here; for other discontents, see here.

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.

Taking Prison Capacity Into Account in Sentencing

I have recently come across an interesting resource which, while dated (published in 1997) offers some clues about how other states, and countries, cope with overcrowding through sentencing strategies.

Sentencing Reform in Overcrowded Times, edited by Michael Tonry, offers a wealth of information on various countries and their sentencing laws. The international comparison shows the trend we already know well: the US has the largest number of prisoners per capita (see the numbers in the World Prison Population List, compiled by Ron Walmsley from King’s College London), and has not emphasized, as other countries have, proportionality in sentencing and seeking non-custodial alternatives. The book has short chapters on every country, summarizing its sentencing rules, and pays particular attention to strategies for battling rising imprisonment rates. A non-obvious example is South Africa, who started worrying about overcrowding back in 1976, and made some subtle changes to its sentencing structure, leading to a decrease in overcrowding in general, and to the overrepresentation of Africans in particular (the book estimates that the abolition of Apartheid crimes was only partly responsible for this change).

The U.S. chapters of the book do not include California, which does not have, as we know, sentencing guidelines and commissions. They also tell us something else that we already know – invariably, the introduction of determinate sentencing led to an increase in prison population across the board, particularly when accompanied by Three Strikes laws. But they also tell us that in Minnesota, Oregon, Pennsylvania, and various other states, prison capacity is factored into the sentencing guidelines as a criterion to be weighed in by the judges. There are various forms in which prison capacity is taken into account: several sentencing reforms, taking place in the mid-1990s, added some non-custodial sentences, and in some cases curtailed prisoners of the non-violent kind when scarce prison room was needed to house violent offenders. These strategies are not consensual; as Jeffrey Ulmer shows in his book Social Worlds of Sentencing, DA’s officers are usually opposed to taking jail capacity into account, while judges embrace this consideration as a practical one.

Inversely, it is interesting to find out that changes in the opposite direction are also true; that is, enhancing prison capacity leads to an increase in imprisonment rates, as Stewart D’Alessio and Lisa Stolzenberg show in a paper published in Journal of Criminal Justice.

It is interesting to think whether the number of people sentenced to death in CA will increase with the construction of the New Death Row, and with the possible introduction of double-celling; also, when we consider alleviating overcrowding with new prison construction, we should take into account the increase in people sentenced to prison that, according to D’Alessio and Stolzenberg’s findings, may follow such a move. It is also worth thinking of the sentencing commission bill, which we haven’t heard about in quite a while, and on how a sentencing commission in CA might take prison capacity into account when fixing our broken sentencing policies.

Sentencing Commission Bill Passes Third Reading at Assembly

Yesterday, the Sentencing Commission Bill, in its amended shortened version, passed its third reading at the Assembly (50 ayes, 29 noes). The breakdown by assembly members is here. If I’m not mistaken (and readers with more legislative savvy are welcome to correct me), the bill will now pass to the Senate hands.

Sentencing Commission Bill Update – and a Trailer for an Excellent Film

Earlier this month, we reported on the Sentencing Commission Bill’s move to the suspense file. The bill has passed on the committee (12 ayes, 5 nos) and is moving on to a third reading at the Assembly. Perhaps this reflects the wish for a more systematic alternative to the threatened mass-releases to relieve overcrowding, but your guess is as good as mine.

Incidentally, I am posting this from the Law and Society Annual Meeting in Denver, where I just had the chance to see Susanne Mason‘s fantastic documentary Writ Writer, about Fred Cruz, the inmate who started the avalanche that would end in the Ruiz v. Estelle case, which revolutionized the cruel, slavery-like Texas prison system. It is absolutely fantastic and I strongly recommend it. More on the film here.