Skip to main content

California penal policy: Realignment and beyond

Jonathan Simon, professor of law | October 11, 2011

“Earlier this year, Governor Edmund G. Brown Jr. signed Assembly Bill (AB) 109 and AB 117, historic legislation that will enable California to close the revolving door of low-level inmates cycling in and out of state prisons. It is the cornerstone of California’s solution for reducing the number of inmates in the state’s 33 prisons to 137.5 percent design capacity by May 24, 2013, as ordered by the U.S. Supreme Court.”

As the above quote from the California Department of Corrections and Rehabilitation’s realignment website, suggests, it is the most important shift in penal policy in California in forty years, but few appear to care about it. Desultory media coverage is matched by the equally desultory opposition of the formidable crime warriors that line the corridors of the California legislature. The title is vague, and perhaps designed to sound boring (even if it hints of profound change). Even while describing it as historic, the Governor has largely suggested it is a necessity for complying with the recent mandates of the federal court with the modest goal of achieving a prison population that is at 137.5 percent of design capacity by 2013. But make no mistake about it, realignment legislates the end of mass incarceration as we’ve known it.

Realignment has lots of moving parts but two particularly significant elements. The first redefines the punishments available for felonies in the state. Historically, following the common law tradition, California law defined as a general matter, death, or state prison, as the authorized punishments for all felonies (unless otherwise prescribed by the specific offense terms), with a limited option for county jail for a period not to exceed one year. Realignment would remove that one year cap, making county jail a potential sentence for felonies. The law however excludes “serious” or “violent” felonies (technical terms including scores of specific offenses, some not as serious or violent as you might imagine), as well as a laundry list of non-serious, non-violent offenses that law enforcement wanted excluded (mysteriously including “dealing in horse meat”). (Download a legislative summary here.)

This provision might seem to only trade one form of incarceration, state prison, for another, county jail time; a cynical shell game designed to relieve court pressure without altering our basic addiction to incarceration. There is more potential for change here than meets the eye.

Historically it was assumed that persons sentenced to more than one year of incarceration were better off in prisons which were larger facilities, with more opportunities for education, rehabilitation, and employment. Today, after decades of building warehouse prisons aimed achieving only custody, the state prison system is a humanitarian disaster.

County jails may have their own problems, but they are typically located closer to the communities that California’s prisoners come from, permitting family ties to be sustained and opening access to educational and rehabilitative resources that are far more available, at least in the urban counties from which the vast majority of prisoners come. Potentially more importantly, the law grants broad new authority to counties to assign “low risk” inmates in county jail to home arrest and electronic monitoring. This gives counties the option to replace traditional brick and mortar custody with enhanced supervision and surveillance methods, a move that criminologists have been advocating for decades, but which has been considered an anathema in California’s “total incapacitation” penal policy.

Equally important, realignment fundamentally reshapes parole supervision in California. Since the late ’70s, virtually all California state prisoners faced a 3-year period of parole supervision in the community under the authority of state parole officers and subject to return to prison for even technical violations of parole. Once parole worked as reentry agency with the ambition of keeping prisoners from going back to prison.

But as documented in my first book, Poor Discipline: Parole and Social Control of the Underclass, 1890 to 1990s, California turned its system into a fast-track system for recycling parolees back to prison. Starting in the 1980s, roughly half of California prison admissions have come from parole revocation. The resulting churning of this population, with very short prison sentences (typically 4 to 6 months) for revocation, followed by release with little planning or provision, has been widely condemned for wreaking havoc with prisons while providing less than zero crime control benefits (in effect creating crime).

Realignment keeps the three years of post-release supervision, but moves responsibility for that supervision to county probation agencies for a significant portion of the prisoners (excluding the serious and violent offenses, as well as various sex offenses). Parolees under county supervision will no longer be subject to return to state prison for technical parole violations and by the authority of the Board of Parole Hearings. Now county courts, the same authorities that sentence offenders charged with crimes, will have to decide on the appropriate sanctions (which could include county jail).

As this blog has advocated before, reducing the role of state parole supervision is by itself a step forward. County probation, while subject to resource constraints, has sustained an institutional culture more oriented toward rehabilitation and reentry than state parole which was assimilated into the custody oriented approach of the prison system decades ago. Moreover, by channeling decision making from the rubber stamp Board of Parole Hearings — which rarely rejects re-imprisonment for parole violations — to county judges, realignment ends the perverse incentive to use state prison as a tool for all kinds of low-level violation behavior. Judges who see both parole violators and newly criminally charged defendants can apply a common standard of public safety to both groups.

These two aspects, widening the role for counties in the punishment of felonies and eliminating (or at least significantly reducing) the wholesale recycling of parolees back to state prison for technical violations, go a long way to ending the policy of mass incarceration in California. The heart of that policy was the assumption that removing offenders of all sorts from their communities and placing them in state prisons would make those communities safer.

This indiscriminate quality to mass incarceration is a significant part of what led the scale of imprisonment to grow beyond any reasonable bounds and become a humanitarian crisis in California. It also contributed to abandonment of any ambition to provide rehabilitative programming in California prisons or to invest in significant reentry efforts for those leaving. If crime goes down simply by locking more potential criminals up, than rehabilitation and reentry are irrelevant.

These changes are historic and great credit goes to the Coleman and Plata litigations (culminating in the Brown v. Plata, Supreme Court decision in May 2011) which has dragged the state’s political class into a long delayed reckoning with our fatally flawed penal system. But realignment leaves in place, and indeed reinforces, one crucial remaining aspect of mass incarceration, the extreme extension of sentences for serious and violent crimes. California prisons are increasingly filled with prisoners sentenced to lengthy or even life terms. The lifers — a group that due to Three-Strikes now includes roughly a fifth of the entire prison population — face decades in prison and poor prospects for ever being paroled (although there are signs the parole process may be becoming unfrozen).

Realignment will only increase the concentration of such prisoners in the state prison system. This will leave us with a smaller prison population perhaps, but one made up of prisoners with little hope or incentive to creating a dignified and safe culture inside prisons. Indeed the management problems created by such a concentration of hopelessness could make our prisons even more degrading than they are today for both prisoners and prison staff.

California needs to fundamentally revisit its sentencing policies for serious and violent crimes. Three-Strikes needs to go and parole release mechanisms recalibrated to assure that prisoners who avoid conflicts and work on their risk factors see a realistic path to freedom. These will be far more controversial moves than realignment, and opposition from both Democrats and Republicans in the legislature (and presumably the Correctional Officers union) will be fierce.

One step, however, that the Brown administration could take now and with no legislative authorization needed, would be to announce the end of the supermax regime in place at units of Pelican Bay and Corcoran state prisons among others. It is these units, Secured Housing Units, as they are described in California, that are the main focus of the hunger-strike by prisoners both in and out of the SHU, which is continuing across multiple California prisons this week.

The SHU regime of being locked down to your cell for nearly 23 hours a day every day (and in California amazingly you are in many cases sharing this tiny space with a second prisoner) adds sustained physical suffering and potential psychological disintegration to the already degrading circumstances facing long term inmates. Assignment to a supermax or SHU unit is an administrative decision taken within the Department (which is the executive branch) and not part of the legal sentence imposed by judges based on legislation. Moreover the evidence about violence inside the prison system suggests it is increasingly difficult to justify the SHU as a management tool.

An announcement that the SHU system would be wound down and replaced by new strategies for addressing those prisoners who do pose a serious risk to prison staff and other prisoners within two years (that is by the time the Brown decision requires the population reduction target to be reached) would send a ray of hope into this dark core of mass incarceration that is, as yet untouched by realigment. In subsequent posts I will address some of what these new strategies could look like.

Cross-posted from Jonathan Simon’s blog Governing Through Crime.

Comments to “California penal policy: Realignment and beyond

  1. I know little about this new law and less about the CA prison system. Unfortunately, I do know something about human nature, Male and Female. Since we seem to be talking about males here, let me say that I have been acquainted with some not-so-nice fellows over the years (I am 67 years old).

    In my experience, adults seldom change their behaviors, period, although violent behaviors seem to decline with naturally declining testosterone, or maybe just plain aging. I am all for rehabilitation, but I seldom see it work. If only we could identify those who are able to change their adult behaviors significantly! Until that happens, I fear that we will just keep revamping systems that don’t result in long-term improved behavior.

    The problem is in trying to solve this problem through incarceration, however administered, and not through behavior modification, if we could only find a successful way to change adult patterns of thought and action. We need to research how and why those who rehabilitate themselves manage to that. Then we can proceed to facilitate what actually works. (Although I do not advocate it, I have heard that chain gangs worked.)

  2. Does AB 109 apply to cases considered non, non, non. And not under the 59 exclusions to people with a case before October 1st. 2011 for example 07/2011 waiting to be sentenced?

    • While I do agree that we should keep criminals where they belong, in prison, I still don’t understand why the Three Strikes system still exists! It’s just another example of outdated laws that might have made sense in the past, but no longer apply to modern times. I agree with Frank on this one. We should fix this law. California doesn’t need any more unnecessary spending.
      — Charles

  3. Thanks for these thoughtful comments:

    “Professor, if probation has the magic rehab wand, why didn’t they rehabilitate this population the first few times they had the opportunity instead of revoking their parole and sending them to prison?”

    “Guaranteed” funding? Brown is pinning all of his hopes on a voter approved tax increase and a constitutional amendment to guarantee future funding for the enormous financial and public safety burden being taken on by our local governments.”

    These points go well together. Probation has historically been stymied by astronomic caseloads. If the state remains unwilling to transfer substantial funding currently locked up in the prison system to counties, realignment will very much under-perform my hopes for it.

    But this is the time to push for that kind of reinvestment. Counties are where all of us really live. It’s where decision makers are the least silo-ed and listen to their citizens in more comprehensive and holistic ways than state government (let alone the comedy central federal congress). It’s too bad few of us know the names of our county supervisors.

    In my view, however, even if counties prove no better than CDCR at reentry or rehabilitation, they are likely to get the risk calculus around incapacitation better than the state — if for no other reason than they do not have the institutional mechanisms which since the 1980s have resulted in routinized reimprisonment on short sentences for technical violations. If they turn out to be significantly underestimating for crime risk, there is no reason to doubt the responsiveness of chief probation officers who answer to elected county officials.

    This is also a historic opportunity for counties like Alameda, San Francisco, Santa Clara, LA, and Orange, among others, to show what it means to take advantage of the substantial concentration of reentry and rehabilitation related resources that they have as a result of their UC and CSU campuses and alumni populations.

  4. Despite the funding and logistical problems such a proposal raises, no one is addressing the plain fact that county jails in California are simply not equipped to handle offenders sentenced to longer terms than those offenders they currently hold. They not only don’t have the room, the staff, the facilities, the programs, the infrastructure, the philosophy, the training or the architectural requisites to do what realignment expects or demands them to do. Simply put, jails were not built, intended or capable of holding massive numbers of felons for long periods of time. That is what prisons – however badly – were designed to do. And however convenient it might be to solve the state prison crowding problem by shifting the burden from the state’s prisons to the ill-equipped and already overburdened county jail systems, it is a terrible idea.

  5. The “non-violent/non-serious” classification is extremely misleading. Realignment only considers the offender’s current commitment offense. Many of the parolees being transferred to the counties include repeat offenders with PRIOR convictions for violent/serious offenses — no matter how recent the convictions occurred. For example: If a felon paroled for assault with a deadly weapon picks up a new prison term while on parole for possession of methamphetamine, he is reclassified upon his release as a non-violent/non-serious offender.

    Furthermore, the state is providing less money to the counties per offender than the state is currently allotted — yet they expect the counties to somehow “rehabilitate” those who have already failed probation and parole numerous times.

    Professor, if probation has the magic rehab wand, why didn’t they rehabilitate this population the first few times they had the opportunity instead of revoking their parole and sending them to prison?

    Our state prisoners are not the rehab thirsty individuals the Governor would like for us to believe they are. And what about counties like LA, who have been under Court supervision for years due to overcrowding and inhumane conditions — the same conditions cited by the Supreme Court in rendering it’s prisoner release order?

    This is nothing but a shell game designed to dump the state’s responsibilities onto our already overburdened and underfunded counties.

    • Claire, Our founding fathers rejected the use of ex post facto law. They rejected double jeopardy. Americans for decades believed when a person served their sentence, they had paid their debt to society.Using misdemeanor crimes enhanced to a felony to win a prison sentence is wrong yet we allow these so called “wobbler crimes” to trigger life sentences under Three Strikes.

      DA’s have for years targeted the poor, the addicted and the mentally ill. Mentally ill persons rarely know they even have a problem! Remember also in California it is the counties that decide the sentence, then pass the cost of incarceration onto the state.Of the 58 counties 18 are responsible for the majority of inmates. Clearly what these DA’s call discretion is more like a whim.

      Sentencing Reform would drastically reduce the population and the costs associated with incarceration. Drug treatment, job training and therapy cost a fraction of prison cost and have long term savings.What we have been doing is counterproductive and wasteful!

  6. Governor Brown is largely responsible the current state of our prisons as a result of legislation he signed into law during his 1st go around as Governor. But of course he never mentions that, instead laying all the blame on the Department of Parole for failing to “rehabilitate” those who already failed to be rehabilitated multiple times while under the watch of Probation and the Courts. Unfortunately, we have to accept that a certain percentage of our population is perfectly content in living out their lives of crime victimizing others. For those, incarceration is the only option to ensure public safety.

    The Supreme Court ordered the prisoner release due to the overcrowding and inhumane conditions in our state prisons. Realignment simply transfers those inmates to our already overcrowded jails – 20 of which are currently operating under Court ordered population caps. LA county, our nation’s largest system, has been under the watch of the Feds for decades for the same exact issues. This shell game will force the Supreme Court to intervene once again as our jail conditions worsen due to realignment. In the meantime, many of our counties will be pushed toward bankruptcy and our communities will experience a big spike in crime.

    “Guaranteed” funding? Brown is pinning all of his hopes on a voter approved tax increase and a constitutional amendment to guarantee future funding for the enormous financial and public safety burden being taken on by our local governments. Unfortunately for our counties and cities, by November 2012, the problems created by realignment will be so painfully obvious to all that any hope for a voter approved tax increase to fund this mess will be long gone. Brown admits that there will be some “bumps in the road.” But when the “bumps” are so risky, dangerous, and predictable, why not avoid them? There are far cheaper, smarter, and less risky alternatives to realignment.

  7. Thank you again, Jonathan, for clarifying these crucial changes for those of us outside the legal world (insofar as any of us is, pace Governing Through Crime!).

    Thank you as well for advocating for the SHU men again. Some, identified as “leaders”, have apparently been sent into Administrative Segregation – still a SHU, of course – where the air conditioning as been turned on for 24 hours a day in an effort to force the men to cease the hunger strike.

    Once a system of torture is created and administered by the state’s employees, refinements provide all kinds of diversion for the staff. (Incidentally, the inmates of the SHU are in their cells for the full 23 hours. Recently, arguing that the budget cuts have reduced staff, guards have begun limiting time outside in the dog kennels to only a couple of times a week.

    Moreover, as is the case for the legally mandated “two hour” visits with family and friends twice a week, which usually last for no more than 1 1/2 hours, the inmates’ time in the dog kennels is minimized by a variety of delaying tactics invented by the guards.)

  8. Three Strikes must end. Yesterday Oct 10th 2011 I met a man whom told me he was from Afghanistan. I handed this elderly gentleman a story about my son who is now serving 70 years sentence. His charges are entering two homes and taking quick cash/jewelry, no one was home and no weapon. For this my son Jeremy, 27 years of age will serve the remainder of his life in prison. This is Death Sentence. Parole, not possible until 85% of his time has been served.

    This stranger from a foreign country looked me in the eyes and stated “Even in my Country, we would not torture someone for life. Perhaps your son would have been wiped for his crime, but to lock him up in a box until he dies now that is cruel.”

    What has happened to American? How can this be happening ?

    This same man then asked me where my son was sentenced. I was standing at that moment on B street and 3rd Ave. I directed this fellow to look over his shoulder and I pointed west to the San Diego Court house on Broadway and stated it happened right there Oct 29th 2010 just a year ago. Yes, this is going on now in the state of California. The man I was speaking to was correct. This is Cruel. How can Americans allow this to go happen? Wake up this is real and needs to be stopped.

    Sooner or later most Americans will find a friend, loved one or neighbor in prison. Times are tough and people don’t think clearly when they are desperate. Our economy is falling apart. Our Government is taxing us to death while more people are being laid off. More people are reaching to drugs and alcohol for comfort.

    Do you really believe you will never be affected by this Law? Wake up and demand change now before someone you know is serving a life sentence. Help those who have no public voice.

    Very Respectfully,
    Elizabeth Stewart
    You can check out my son’s story on this website.

  9. Great article that nails every aspect of the disaster of California’s prison and penal system. Our Three Strikes Law is a version no other state in the nation has chosen to follow for good reason!

    When you look at the nation’s use of Three Strikes, California incarcerates 4 times as many strikers than all the other Three Strikes states combined! About 25 states have a three strikes law and 25 do not.

    The use of of called “wobble crimes” to trigger life sentences (misdemeanors enhanced to felonies) is costly, unfair and mean spirited. And was never the intent of voters!I t was the ads paid for and produced by the prison guards union that baited the voters! Let’s fix this law and cut prison spending!

Comments are closed.