California's Dubious Course on Prison Crowding

California's Dubious Course on Prison Crowding

By Lou Cannon - September 3, 2013

In 1976, under the golden dome of the State Capitol in Sacramento, a governor responsive to what he later called the anti-crime "mood" of the day signed legislation significantly increasing the length of prison terms in California.

The new law scrapped indeterminate sentencing, which gave judges and parole boards wide flexibility, and replaced it with a system that imposed fixed prison terms for most crimes. California’s “determinant sentencing” statute was the beginning of a trend. Over the years, ballot initiatives and legislative actions mandated ever lengthier sentences for repeat offenders. By 2011, California housed more than 143,000 inmates in 33 prisons built for 83,000, and the Supreme Court ordered the state to reduce its prison population. Writing for the 5-4 majority, Justice Anthony Kennedy said California prison overcrowding had exacerbated mental illness and caused “needless suffering and death.”

California’s governor, after fiercely resisting the Supreme Court order with legal and political maneuvers, eventually reduced the prison population by more than 40,000. Mostly, this was accomplished by a process called “re-alignment,” in which those convicted of specified crimes were sent to county jails instead of state prisons. Now, the governor is balking at another federal court requiring him to release another 9,600 prisoners by year’s end.

The governor is Jerry Brown, the man who signed the determinate sentence bill in 1976. He was then the nation’s youngest governor, an eccentric and unfocused politician who earned the sobriquet of “Governor Moonbeam” from columnist Mike Royko. Judging by the debate at the time, neither Brown nor the legislators who approved the bill contemplated the possibility of prison overcrowding.

Brown subsequently mastered the gritty nuts-and-bolts of governance as a no-nonsense mayor of troubled Oakland, and California voters in 2010 gave him another chance as governor. Now 75 years old, Brown has on balance been an effective governor -- some would say an exceptional one -- the second time around. Brown notably persuaded voters to raise taxes while also making cutbacks that restored the state to fiscal solvency. Polls give him strong approval ratings; he is favored to win re-election if he runs again next year.

Even so, Brown has displayed what California journalist Richard Ehisen, who has written on prison issues, calls a “puzzling” reluctance to endorse sentencing reform at a time when states not known for their liberalism are doing just that. In 2003, Texas passed a law that substituted probation for a prison term for persons convicted of possessing less than a gram of drugs. In 2007, under conservative Republican Gov. Rick Perry, Texas allocated $241 million for drug treatment and other prison alternatives. Both inmate populations and violent crime are down in the state. Republicans also control statehouses in Georgia, Indiana, Kentucky and Ohio, among others, which have embraced drug rehabilitation and sentencing reform with positive results.

Democrats, traditionally more liberal on criminal issues, hold every state office and a super-majority in the Legislature in California. But with a few notable exceptions, they have been more resistant to sentencing reform than Republican counterparts in supposedly less progressive states.

A century ago California pioneered indeterminate sentencing, which often results in shorter terms for offenders whom judges or probation officers consider likely candidates for rehabilitation. This practice was widespread under Brown’s father, Pat, governor of California from 1959 to 1967, and his successor, Ronald Reagan, whose law-and-order rhetoric did not prevent him from approving conjugal visits in California prisons. But during Jerry Brown’s first term as governor from 1975-1979, the state experienced a populist clamor against sentencing discrepancies coupled with conservative distaste for Rose Bird, the Brown-appointed California chief justice who refused to uphold death sentences and was recalled by voters.

In subsequent decades, as California governors, legislators and voters took an increasingly punitive approach to crime, the prison population increased 750 percent. The union representing prison guards became Sacramento’s largest political contributor, giving generously to candidates of both parties who supported the union’s agenda. Among them was Brown, who received $600,000 from the union in his 2010 campaign.

Of more importance than any contribution, however, is Brown’s sensitivity to political history; the governor knows that accusation of being “soft on crime” can be damaging in a California political campaign. Last month he bridled when former Lt. Gov. Abel Maldonado tried to drum up support for a prospective Republican gubernatorial candidacy by charging that Brown had released prisoners before their terms expired.

Responding to Maldonado’s attack, Brown denied that state prisoners were given early release. This is technically accurate, but Brown’s re-alignment sent thousands of prisoners into county jails already bursting at the seams. This in turn forced counties to free thousands of inmates who had not completed their terms, 23,000 this year in Los Angeles County alone. County officials, although short on numbers and details, say that some of those released have been convicted of violent crimes.

As the Los Angeles Times has noted, a number of state prisoners could safely be released, not to the streets “but to nursing homes and hospice care because so many of the longest-service prisoners are elderly, infirm and well past the age at which studies show even the most hardened prisoners commit crimes.”

Brown has ignored this point and put forward a plan that would keep the 9,600 prisoners that the court has ordered him to release behind bars in private lock-ups inside and out of California. In a nod to the guards’ union, the California private prisons would employ state prison guards.

Ehisen, editor of State Net Capitol Journal, says the proposal raises more questions than it answers. One question is its budget impact. Thanks largely to Brown, the state has built up a meaningful “rainy day” reserve fund for the first time in decades. But the governor’s plan would, in the next two years alone, cost more than $700 million, equivalent to two-thirds of the reserve.

The latest Brown proposal was too much for state Senate leader Darrell Steinberg, a brainy politician not known for taking bold positions. This time was different. Steinberg denounced the Brown plan and countered with a detailed one that would set a cap on prison population, settle still-pending lawsuits with prison plaintiffs who allege overcrowding, and expand rehabilitation, drug, and mental health treatment programs for criminal offenders. This would cost $500 million in the next two years, about $200 million less than the Brown plan, which provides no extra funds for treatment programs.

The outcome is uncertain. The State Assembly, has gone along with Brown’s proposal, but Steinberg’s opposition could block it in the Senate. It’s also conceivable the Legislature could come up a compromise before it adjourns on Sept. 13, but for now California prison reform remains in the limbo in which it’s been for years.

More is at stake than the fate of a few thousand inmates. The Golden State has in the past often been a leading national indicator on issues ranging from tax reduction to medical marijuana, but it’s now swimming against the tide of prison reform.

The United States is currently the world’s leading jailer, with China (with four times the population) a distant second. In a blistering editorial, The Economist observed that the “Land of the Free has 5 percent of the world’s population but 25 percent of its prisoners. In all, about 2.2 million Americans fester behind bars; one in every 107 adults. Minor crimes are punished severely; serious ones ferociously.”

The cost of this imprisonment is enormous -- $80 billion a year (or $35,000 per inmate), not to mention “human and moral costs that are impossible to calculate,” as U.S. Attorney Gen. Eric Holder put it last month when he announced that federal prosecutors will no longer charge low-level nonviolent drug suspects with offenses that carry “draconian” mandatory minimum sentences. The London-based Economist, which favors drug legalization, praised Holder and Texas Gov. Perry, an unlikely couple if there ever was one, for turning away from a punitive approach to drug crimes to one favoring treatment and rehabilitation.

There’s still a long way to go. Sentencing reform, as well as treatment of mental illness and attempts at rehabilitation, have potentially broad constituencies that cross partisan and ideological lines. Conservatives say they save money. Civil rights groups say these non-punitive approaches will benefit African-Americans and Hispanics, who are disproportionately imprisoned, often for long sentences.

They are both right.

It’s time for California to get on the bandwagon. 

Lou Cannon, who is traveling in Scotland, has written about the campaign for RealClearPolitics.

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