Prison overcrowding and offender releases

Screen shot 2013-08-11 at 15.17.24Gov. Jerry Brown has known for some time that California’s Prison Realignment was unlikely to bring overcrowding within the CDCR’s facilities in line with the SCOTUS ruling in Brown v. Plata. When Justice Kennedy’s majority opinion upheld the three-court decision requiring the CDCR to bring down overcrowding from 175% to 137.5%, the State correctly identified that relieving the pressure in the chamber could be achieved in many ways: it could build more prisons; it could invest in smart and effective probation measures; it could tinker with the sentencing rules; or it could mobilise county facilities to do jobs that were historically reserved for the state. It ultimately settled on the fourth option.

The state’s effort to transfer inmates from state facilities into county jails was a move of legal and political ingenuity. It enabled the Governor to assure citizens that he wasn’t releasing offenders, as Alito had forewarned in his dissent to Brown v. Plata, and it evaded having to raise vast amounts of money to build new prisons, thus protecting Brown’s re-election prospects for 2014.

But Realignment has been, at best, playing at the margins. To be sure, the margins in California’s prison system are huge, and the effects are already visible. Indeed, the recent reductions in the US prison population have been largely spurred on by California’s recent re-arrangements. The Economist even featured a graph this week that suggested the total US ‘prison occupancy rate’ (a measure of the number of inmates relative to the number of prison beds) was below 100%, meaning within capacity. Unfortunately, a cursory search through the source material at ICPS failed to provide sufficient information with which to verify the statistic for myself, or examine any trends in the data. If true, however, I’d hazard the guess that before California’s recent Realignment, the US occupancy rate would have been in excess of 100%.

Screen shot 2013-08-11 at 16.01.25The progress made in California thus far seems to have stalled. Brown claims to have exhausted all reasonable measures to move inmates between correctional facilities within the state, and any further measure would make Alito’s nightmare of thousands of feral offenders loose on the streets a reality. According to the L.A. Times, the CDCR has displaced inmates to county jails almost to the point of rupture, and it is considering relying on imperfect facilities such as low-security detention centres, fire-fighting camps, and facilities in other states. Nonetheless, last week the Supreme Court refused to acquiesce to Brown’s assurance that the CDCR had reduced overcrowding to levels sufficient to comply with Brown v. Plata.

An offender release thus seems inevitable given the political realities. However, the strategy underlying the implementation of Realignment attests to Brown’s reluctance to take politically bold steps – even if those steps require surprisingly little audacity when viewed against the scientific evidence. If a large-scale release happens, in all likelihood it will begin with the elderly and the infirm. This might bring the overcrowding problem in line with Brown v. Plata.

Or it might not. In drawing attention to how California is “stubbornly behind the curve” on criminal justice and incarceration, the New York Times ran an editorial yesterday advocating the establishment of a sentencing commission and a greater focus on connecting released inmates with extant re-entry and rehabilitation services. These are sensible measures irrespective of whether Brown succeeds in reducing overcrowding by the end of the year. But to get a sense of just how conservative Brown has been in trying to relieve overcrowding, it might be instructive to look abroad:

  • Italy currently has one of the worst records of prison overcrowding in Europe (the occupancy rate there is well over 140%). The Italian Senate ruled on Thursday that they will be cutting pre-trial detentions and will use alternative punishments for minor offences.
  • Venezuela will place 20,000 (40% of the total prison population) of its lowest risk, minor offending inmates on conditional release.
  • South Africa intends to dismiss the probation or parole sentence of 20,000 offenders, and grant pardons to a further 14,600 prisoners.

Releasing huge swaths of California’s prison population, as has been done in Venezuela, would be imprudent. But Brown’s reluctance to entertain the idea of offender releases, except as an absolute last resort, shows his inability to recognise just how modest Realignment has been.

10 thoughts on “Prison overcrowding and offender releases”

  1. I’m a big supporter of unions and labor in general. But one thing not mentioned is why Gov. Brown sees his only viable option as the dumb one — keeping too many people locked up for too little reason. The answer? California’s powerful prison guards union, which worked its butt off politically to fill those prisons up — and thinks this odd sort of blue collar job subsidy should continue while someone else figures out how to fix the mess they helped create with the tiresome and ineffective “lock ’em up” solution to nearly every social problem.

    We don’t hear much about this, but we should. The NY Times just published a Steven Greenhouse article on how the BART contract troubles have turned some Californians off to supporting labor as much as in the past.
    While I’m sure that’s of interest to Bay Area commuters, the prison overcrowding situation is much grimmer, involves basic violations of human rights, and is far more costly in financial terms. Moreover, it’s largely driven by one of the few unions in the country that actually has too much political power over folks like Brown, the exception that disproves the myth that unions have too much political power in general that is many conservatives’ nightmare.

    Aside from that, Brown is one more gutless politician who doesn’t flinch at depriving other Americans of their freedom because someone they might release might prove to be a political embarrassment down the road by being rearrested. God help the average voter who voted for politicians who then disappointed citizens by serially reneging on campaign promises — if only we could find a way to lock up those sort of repeat offender political embarrassments.

    I can see Alito losing sleep now. BFD. 10,000 feral former inmates couldn’t possibly do more damage to our society than a single feral Supreme Court Justice — and there’s obviously more than one of those.

  2. I don’t understand this “feral” prisoner stuff.

    Aren’t the folks who get released going to be almost entirely those who got put away for non-violent crack cocaine or other non-violent offenses?

    1. The idea of the ‘feral’ offender is a long-standing rhetorical device that’s been deployed to great effect to propel vindictive justice policies through legislatures. Theories of ‘total incapacitation’ rely almost exclusively on the ability to persuade people that some offenders are simply uncontainable, and that the only sensible option is to lock them up indefinitely in solitary confinement.

  3. Overcrowding matters a lot, but it’s not the only determinant of the prisoner’s chance of a minimally decent quality of life and of rehabilitation. Would you rather be in a Turkish prison or an Italian one? There are evils in American prisons – overuse of solitary, gangs, rape – that may be exacerbated by overcrowding, but are not determined by it.

    The belated humanitarian concern of the Italian Senate for prison conditions might have something to do with the fact that il Cavaliere is increasingly likely to serve time.

    1. I don’t think that this has much to do with Berlusconi; even if he were to actually do time (which I still don’t believe), it’s unlikely that prison reforms would be enacted fast enough to help him.

      More likely, the problem is indeed that almost half of Italy’s prison population consists of pre-trial detainees (second highest rate in the EU after Luxembourg). This means that a lot of people get detained how don’t end up with an actual prison sentence. This is some low-hanging fruit to pick if you want to reduce the prison population. Another problem is that pretrial detention in Italy can be rather long due to inefficiencies in the criminal justice system [1].

      [1] Say what you want about the US criminal justice system — and there’s plenty to be critical of — but at least we’re pretty good at observing the right to a speedy trial.

      1. I have a colleague who studies kidnapping and torture and gave me the Fodor’s guide for where to get kidnapped and where not to. Someone could something similar with prisons and try to explain why they vary so much culturally. Personally, I would most hate to be a prisoner in Russia — if you come out at all your chance of getting one or more serious infectious diseases inside are enormous.

        Someone check me on this if you can, but is true as well that French prisons have the highest suicide rates among prisonsers?

        Best place to be in prison: Probably Sweden or Norway.

      2. That explains the problem but not the unusual attention – it’s been like that for decades, possibly centuries. Something similar happened in Brazil when a politician was (unusually) jailed for corruption. The Minister of Justice started talking about prison conditions.

  4. There are men and women I am sure that have been in prison a very, very long time that if released want nothing more then to go home and be with there families. If given the chance would not re-offended. California has spent many years putting away small non-violent offenders away foe many, many years there crimes don’t even match time given and if released surely would live productive life’s if given the chance. One way would be to pass the same laws that Washington has just passed and that is to banned the box. The question on the job app have you been convicted of any crimes. We will no longer have to answer that question witch will open more job opportunities for us. Making it easier to not re-offended.

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