Response to Justice Alito about Prison Overcrowding in California

As the Supreme Court debates whether to force California to finally reduce overcrowding in its wretched prison system, Justice Alito asks “If 40,000 prisoners are going to be released…[do] you really believe that if you were to come back here two years after that you would be able to say they haven’t contributed to an increase in crime?”

As a resident of California, I know that releasing 40,000 prisoners en masse will results in some crimes in the community, and I fear that accordingly. But as someone who worked as an inspector of California prisons, I would suggest with respect that the Justice is framing the issue too narrowly.

Better comparative questions for the Court to ask would be as follows:

(1) “Are 40,000 prisoners who have served their sentence in a grossly overcrowded and inhumane prison system more likely to re-offend than are 40,000 prisoners who have served their sentence in adequately staffed and resourced prisons?”
(2) “If we had reduced the prison population by putting 40,000 low-risk people on their way to prison into high quality community correction systems instead, would the crime rate have been lower two years from now than it will after we have massed released 40,000 people who have spent years in grossly overcrowded, inhumane prisons?”.

By focusing only on the negative consequences of the unfortunate downstream decision the state may be forced to make, Justice Alito is overlooking the far more profound and ill-advised public policy decisions made upstream that put us in such evil case in the first place (and will do so again and again if we don’t move our analytical focus to that point in the policy stream).

Author: Keith Humphreys

Keith Humphreys is the Esther Ting Memorial Professor of Psychiatry at Stanford University and an Honorary Professor of Psychiatry at Kings College Lonon. His research, teaching and writing have focused on addictive disorders, self-help organizations (e.g., breast cancer support groups, Alcoholics Anonymous), evaluation research methods, and public policy related to health care, mental illness, veterans, drugs, crime and correctional systems. Professor Humphreys' over 300 scholarly articles, monographs and books have been cited over ten thousand times by scientific colleagues. He is a regular contributor to Washington Post and has also written for the New York Times, Wall Street Journal, Washington Monthly, San Francisco Chronicle, The Guardian (UK), The Telegraph (UK), Times Higher Education (UK), Crossbow (UK) and other media outlets.

11 thoughts on “Response to Justice Alito about Prison Overcrowding in California”

  1. This is a perfect illustration of the right-wing mind set. Resources are always available to prevent poor people from doing bad things but never for the government to do good things. Especially if those good things might benefit poor people.

  2. Actually even in the narrowest terms Justice Alito has framed the question incorrectly. He is ignoring the potential effect of additional prison time under current conditions on the convicted criminals who are being released right away as well as those who aren't but will be in the future. It's obvious that these released criminals will engage in additional crime; what isn't clear is how much additional crime, if any, is being avoided by not subjecting those currently being released to two (or whatever) additional years in prison under current conditions, and by immediately improving conditions for those who will be in prison much longer.

    It might be zero, but the point is that while we can be sure that some of these released prisoners will commit crimes in the next two years, it isn't clear what the effect will be integrated over a longer period of time.

  3. Does anyone know of any studies on incarcerated non-violent offenders rates of recidivism vs. probation or paroled rates? Especially whether the type of crime committed worsens after a stay in prison? Maybe sentence length vs. recidivism?

    The hypothesis being that time spent in poor prison conditions *introduces* negative behavior patterns. I know the studies must be out there.

  4. To Eli: The California Dept of Corrections has done such studies, under the direction of UCLA's Richard Berk (? … not sure I am remembering his name correctly). The studies were designed to assess the validity of the inmate classification scoring system that CDC uses to assign inmates to minimum, medium, or maximum security, but the reports also contain significant amounts and analysis of data on recidivism. One implication of the mass release of 40,000 inmates is that it will reduce the rate of "churning" (same inmates in-and-out within relatively short time frames). The question is: if parole violations don't result in sending people back to prison, what WILL become of parole violators? The so-called community correctional facilities available in CA are at least as overcrowded as the prisons and probably less well supported in terms of educational and other programming. I would have to agree that getting non-violent offenders and drug-related offenders out of prison through mass releases or otherwise can't happen soon enough, but it doesn't change the fact that there are few if any good alternatives in place or contemplated.

  5. A fundamental problem with what seems to be Alito's position is that there is no amount of overcrowding that it cannot justify.

  6. I claim releasing the 40,000 prisoners from illegally bad conditions will result in less crime.

    How? By no longer having the state commit the crime against those same prisoners.

    If the State's conduct is illegal, call it a crime.

  7. MobiusKlein,

    It should be a crime, but, unfortunately, it's not. This is true of many constitutional violations, including violations of the First Amendment as well as the Eighth Amendment, as when Bush's thugs would not allow people with bumper stickers to which they objected to attend public events. The victims may bring civil suits, but the violators of the highest law of the land — the Constitution — face no criminal responsibility. Of course, some constitutional violations, such as torture, are crimes, but they are not prosecuted.

  8. In the Sac, Thanks. Was this the study you were referring to? (

    It would seem to me that a more nimble approach would reap tremendous rewards in dealing with any population. The study seems to show that a more nuanced approach to inmate categorization leads to a reduction in overall offenses, better conditions, and hopefully long-term benefit.

    Kind of off-topic, but reading the study's emphasis on identifying more important placement factors, I was struck by how similar I've often thought our approach in education should be. In my opinion, the achievement-gap is entirely socio-economic, and our public schools are largely based on a model that doesn't take SES into account.

    Just as the study awarded inmates points for particular aspects of their situation, and then assigned them accordingly, so to ought a nimble educational system work. Students and parents would be given points according to levels of human and social capital (determined by assessment and analysis). Their score would then place them into a particular neighborhood school, or at the very least a special program within the school, that is then designed to target the child's educational/psychological/social, etc. need.

    This approach would present a number of challenges, but I think it would solve far more. I recently heard the term "pragmatic egalitarianism". I would describe this model as such. Currently, we assume that every child can succeed (and that every teacher can help them achieve it), out of a false sense of egalitarianism. But the reality is that every child cannot succeed, owing to a plethora of known risk-factors that can be identified and predicted from with a high degree of accuracy. So our lofty intentions end up hurting a lot more children than we could have helped by implementing a more restrictive, albeit structured and interventionist approach.

    I suppose the great irony here would be the insight into a nimble approach to the public education achievement gap coming from an analysis of the department of corrections, especially as we know the strong correlation between low academic performance and incarceration rates.

  9. Eli, there have been many studies comparing incarcerated non-violent offenders to those who receive an alternative such as probation or parole. Three important reviews of this literature have been published (Killias et. al, 2006; Gendreau, Goggin, and Cullen, 1999; and Nagin, Cullen, and Jonson, 2009). All three reviews point out methodolgical problems with the vast majority of the studies, however. The largest methodological problem is that of trying to demonstrate causality since offenders are generally not randomly assigned to prison vs. an alternative. There have been a few cases where in fact courts have randomly assigned lower level offenders to either imprisonment or some alternative. There are also a number of creative studies that make use of quasi-experimental methods such as instrumental variables, natural experiments, propensity score matching, etc., to try and replicate the desired properties of a true randomized experimental design in order to make an inference of causality. There are two issues being examined in this body of literature: 1) does the decision to send someone to prison as opposed to an alternative lead to a deterrent, null, or criminogenic effect?, and 2)what is the dose response effect, or in otherwords does more time in prison given a prison sentence lead to a deterrent, null, or criminogenic effect? On both of these issues, the bulk of the literature has indicated a null to slightly criminogenic effect of imprisonment. But again, there are a lot of methodolgical hurdles, and Dan Nagin (one of the key researchers in this area) cautions that it is too early to base dramatic policy decisions on this literature at this point. Probably the safest assumption to make at this point is that prison has a null effect on future criminal behavior, although the evidence does seem to be mounting in favor of a small criminogenic effect at the margin. Wild findings of large deterrent or criminogenic effects are questionable. Of course this just examines the impact of imprisonment on future criminal behavior. It speaks nothing of the incapacitative effect of imprisonment, where the goal is not necessarily to influence future criminal behavior but simply to take a slice out of the criminal career while the offender is removed from society. It also speaks nothing of the variety of collatoral costs of prison to families and communities, which have been well-documented. Mark Kleiman has the perfect solution for all of this though. If we follow his advice and the evidence generated from programs like HOPE in Hawaii, it's certainly reasonable that we can have less crime AND less incarceration at one and the same time.

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