September 6, 2011 | 3:07 PM | By

How “realignment” will change criminal justice in California

FILED UNDER: Corrections, Budget, California Department of Corrections and Rehabilitation, Center for Juvenile and Criminal Justice, Dan Macallair, David Ball, Prison Overcrowding, Realignment, Santa Clara University

CDCR

California has what one might call a “pressing problem” when it comes to the prison system. In May, the US Supreme Court confirmed a lower court’s conclusion that California’s prison system is so overcrowded that inmates are being held in conditions that violate the 8th Amendment’s ban on cruel and unusual punishment. So the state was told to do something about this overcrowding, and fast.

Basically, by the end of June, 2013, the state will have to reduce its prison population from 144,000 inmates to 110,000 inmates. How? California, led by Governor Jerry Brown, has a plan: move supervision and incarceration of lower-level felons to the counties. That plan goes into action on October 1 of this year. Realignment is set to drastically change the way we do criminal justice in California. Here’s why.

How we do things now

When people use metaphors to describe the criminal justice system, you often hear about the “pipeline” from troubled neighborhoods to prison. But the reality is the criminal justice system in California is not a monolithic machine. It’s made up of a lot of different agencies and individuals who are making decisions about what happens to people in the system.

Nowhere is that point more clear than when you look at county-by-county discrepancies in who ends up in prison.

“What typically determines whether someone gets sentenced to state prison is the county that they’re from,” says Dan Macallair, executive director of the Center for Juvenile and Criminal Justice (CJCJ). “It’s a justice by geography.”

CJCJ has been tracking how justice is administered in California’s very distinct 58 counties, and Macallair says the results show counties send people to prison at drastically different rates. Why?

If you’re thinking that crime rates in counties explain the differences, that’s not true–at least not when it comes to violent crime rates, says David Ball, an assistant professor at Santa Clara University School of Law.

In a recent paper, “Tough on Crime on the State’s Dime,” Ball drew comparisons between California counties and found, for example, that while Fresno County and San Francisco county share similar violent crime rates (San Francisco’s is a bit higher) and similar population sizes (Fresno’s is slightly larger), Fresno County has sent almost three times the number of people to prison over the past ten years.

Prison, Ball says, is for the worst criminals–violent criminals–and the stats show that some counties are sending people to state prison at numbers not justified by their violent crime rates. Instead, Ball says, the differences stem from county culture, and how decisions are made at every step along the way–from who gets arrested, to what charges are brought, to how juries react to certain types of crimes. Furthermore, while some counties have a lot of diversion programs like drug court, rehab programs, etcetera, other counties have few to none.

“It’s not one size fits all here, and maybe that’s the way it should be,” Ball says. “I think that community norms about crime and punishment are different across the state. We’re a very large state and we have political disagreements about a lot of things.”

The issue, Ball says, is that counties shouldn’t have to pay for each other’s decisions. If Fresno County or San Bernardino County sends a drug offender to prison, the state picks up the tab. If Alameda County or San Francisco County put that same drug offender on probation and in a rehab program, the county pays.

What realignment changes

Starting October 1, things will be a bit different. On that date, the state prison system will stop accepting what they call “low-level offenders” from the counties. On a technical level, that means people convicted of non-violent, non-serious, non-sex felonies will no longer serve time in prison. Additionally, the county will supervise any low-level offenders released from prison on parole. The vast majority of parole violations will also have to be served at the local level–not in state prison.

The idea is that counties will only be able to use state prison for the worst offenders–those who commit serious and violent crimes–and will need to develop ways to deal with petty thieves, drug users, and other lower level offenders on the local level. A county can still sentence a car thief to three years of incarceration, but that time would have to be served in county jail, not state prison.

What makes realignment criminal justice reform

Substantively, jail and prison may not be so different–may even, be worse for the offender. The primary difference, says San Francisco Undersheriff Jan Dempsey, is that county jails are designed to house people for a few months, while they’re on trial, whereas state prisons are designed to house people for years. “Prisons have things like conjugal visits,” says Dempsey. “We don’t allow that in jail.” And the list goes on: jails usually don’t have things like on-site hospitals, have less recreation time, and don’t allow tv’s and radios in cells.

In other words, counties are not currently set up to deal with punishing and rehabilitating thousands of new felony offenders. The state will distribute about half a billion dollars to counties, but that still won’t cover it all.

According to Alameda County Probation Chief David Muhammad, not enough money means counties simply won’t be able to replicate state prison on a local level. “Incarceration is the most expensive option,” Muhammad says. “We have to be more innovative. We have to be more creative with the limited money that they’re giving us.” That means greater use of alternatives like probation, treatment programs, and house arrest.
What could go wrong
Most would agree that incarceration has historically filled two functions effectively–punishment and incapacitation–if not rehabilitation. To a certain extent, while people are locked up, they’re not committing new crimes. Most criminologists now estimate that about 25 percent of the nation’s crime drop over the past couple of decades is attributable to this incapacitation factor.
When realignment inevitably leads to fewer people behind bars, crime will go up, says San Mateo County Sheriff Greg Munks. The term “low-level offender,” he says, gets used too dismissively. “If you go outside and look at the bus that goes to San Quentin, once a week with 30 or 40 guys from my jail, you wouldn’t just look at them and say, these are low-level offenders,” Munks says. “Some of them are repeat offenders, they’ve been in the system all their lives. And they’ve been through the county system time and time again, and failed.”
That said, counties can do a better job at rehabilitating people than the state has done, says Munks, but it’ll take time. “This is going to be an opportunity to determine, what do we tolerate?” says Munks. “And the public is either going to have to invest in more jail beds and more programs, or they won’t.”
The money factor
Los Angeles County, which is set to reabsorb 8,000 parolees in the first year alone, is downright mutinous right now over the state’s decision to transfer thousands of prisoners to county responsibility. The county is worried that the state is bailing on its responsibility, with no firm guarantees of continued financial support.
Meanwhile, in the Bay Area, counties like San Francisco and Alameda are upset that they’re getting such a small slice of realignment funds. The way funds were allocated was largely based on which counties have traditionally had more inmates in prison.
David Ball, the Santa Clara Law professor, is particularly critical of this move. Up until now, because the state has taken in as many offenders as the counties wanted to send to prison, innovative counties like Alameda and San Francisco have been subsidizing their use of prison. Now, under realignment, they’re being punished again. Ultimately, Ball says, “that’s not helping places that suffer from violent crime, that’s giving money to places that chose to treat violent crime with prison.” A better model, he says, would be to provide state funding to places with bad crime problems, and let them innovate their own solutions, in line with their own politics, culture, and priorities.
Of those spoken with for this story, everyone says realignment has the potential to make the criminal justice system in California better. Sheriff Greg Munks, perhaps the biggest skeptic of the switch of all those interviewed, said that at the very minimum, “we’ll be able to do things better than the state.” Though, he added, with a recidivism rate that hovers between 60-70 percent, “that’s a pretty low bar.”

 

 

  • Frankfacts

    My biggest complaints, about this article, are the exact same complaints I had about the Three-Judge Federal Panel that ordered the State of California to reduce its huge prison population, and ordered several reforms—including some absurd changes. 1.) The federal judges, including Judge Henderson, never bothered to see and hear complaints and suggestions from innocent wrongly-convicted people, like Gloria Killian and Dewayne McKinney. 2.) WOMEN, AS ALWAYS, WERE IGNORED IN THIS STUDY, AS THEY ARE IGNORED IN THE PRISON DISCUSSION, DISPITE MOST BEING INNOCENT OF ANY WRONG-DOING (and using letal force for self-defense is not a crime). 3.) Innocent and much-too-harshly-punished people, all of whom never should have been sent to prison in the first place. 4.) No tax money going to places with a 90% success rate in rehabilitation, such as Delancey Street, Kazi House, etc. 5.) White conservative Republican lawmakers ignoring all of the facts stated above, and who continue to fight against many of these people being freed. 6.) Black liberal and “moderate” Democratic lawmakers who ignore cries of help from these same incarcerated people.