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Realignment time: The prison crisis comes home

Jonathan Simon, professor of law | August 7, 2012

Norimitsu Onishi takes a sobering look at California’s emerging “realigment” policy in this morning’s NYTimes [ed: Aug. 6, 2012] (read it here). The state’s major response to the humanitarian disaster in its state prisons, and the Supreme Court confirmed order to reduce the prison population by approximately 40,000 prisoners, has been to channel many people convicted of less serious felonies, or found to have violated their parole, from state prison to counties, which have the legal authority to incarcerate them in jail or to impose alternative sanctions. Along with this mandate came a stream of state revenue allocated to counties in proportion to their prisoner burden and open ended in terms of what it can be spent on.

Onishi’s reporting suggests that counties are breaking in one of two ways in their dominant response; either expanding jails in anticipation of having to permanently incarcerate a far larger population than in the past, or investing in re-entry programs to help released state prisoners avoid future crime and arrests, and enhanced programming to make probation more successful as an alternative to incarceration for felony offenses. The divide is largely between coastal urban counties, which are focusing on re-entry and alternatives, and rural counties, especially in the state’s sprawling Central Valley, which is investing in reopening jail space.

The stakes are high. Many county jails are already under court order for over crowding, which means that incoming prisoners must be balanced with early release for current inmates in jails (although low-hanging fruit through better pre-trial release procedures is an obvious partial solution). Others are not under order, but are already approaching unconstitutional conditions, which are likely to occur with added inmates.

Moreover, even new jails are likely to create severe human rights problems if used for prolonged incarceration. The great lesson of California’s correctional health care crisis is the toxic relationship between incarceration and chronic illnesses (including, importantly, mental illness). If counties try to reproduce mass incarceration policies at the local level, the results could be even worse (especially in rural counties which are already suffering from high levels of chronic illness and poor medical service).

On the other side, the revitalization of rehabilitation as a legitimate penal objective (as opposed to California’s extreme model of total incapacitation) is being pressed into early service by realignment, and may find itself unfairly discredited and delegitimized. The urban counties taking the biggest strides in experimenting with alternatives are also those most vulnerable to upward swings in violent crimes (homicides, aggravated assaults, armed robberies) that have historically altered not only the views of people in that county, but in the whole state.

The best thing about re-alignment is that it will (and is) incentivizing a serious stake-holder conversation at the county level, one which sounds likely to be more purple than red or blue (to channel our President here). I have faith that this local conversation will be less toxic than the state-level one we have had for 40 years.

However, we cannot afford to let the state actors off the hook just yet. Not only must the federal courts keep the focus (and the ultimate legal responsibility) on the state of California, citizens must both get involved at the county level and begin to demand accountability (as well as money) from the state. Counties and citizens alike have a stake in making sure that the policies that led to industrial-scale torture through deliberate indifference to medical and mental health in California’s prisons — and to a deeply entrenched racist prison gang system that continues to menace communities throughout the state — are fully aired. Don’t let state leaders get away with leaving the blame for both the ongoing crisis and the next crime wave on county sheriffs and re-entry workers.

How to stop them?  I believe there are two steps necessary to prevent a recurrence of the present disaster.

First, create a truth and reconciliation commission to study the causes and consequences of mass incarceration in California. Second, create a California Commission for the Prevention of Torture, or Inhuman and Degrading Treatment or Punishment, modeled after the Council of Europe’s Committee for the Prevention of Torture, or Inhuman and Degrading Treatment or Punishment and the UN Committee against Torture, with the power to enter and inspect any prison, jail, or re-entry facility (as well as any other state-funded place of detention) in the state of California, at any time, day or night, without prior notice, and with authority to report to the Governor and the legislature on the proximity of current conditions to torture, or inhuman and degrading treatment.

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

Comments to “Realignment time: The prison crisis comes home

  1. It is of high importance that we, as true citizens of this here great nation, realize that, for the most part, we are dealing with our fellow American comrades when we discuss and analyze the prison population in California.
    Prison realignment is a policy that is set for failure from the start.
    Capitalism is a great economic system, however, if left unchecked, there is a high likelihood that “cancers” within such a system will form.
    The California Correctional Peace Officers Association (CCPOA) is the most powerful union our country, and is the union for the correctional officers of the California Department of Corrections and Rehabilitation (CDCR). Since the 1980’s and 1990’s, the CCPOA is the main organization responsible for the exponential growth of CDCR, it’s prison population, and it’s taxpayer-funded multi-billion budget (~$10 billion FY/2011); by way of carrot and stick approaches when dealing with our elected officials. As a result of such questionable tactics, our politicians have been “forced” to push extreme sentencing guidelines such as doubling of terms (“Two-Strikes”), sentences that have steadily been increasing year after year, etc.
    With prison realignment, overcrowded local jails will house those that are considered non-violent, non-sex, and non-serious by the court. It does NOT even come close to resolving this predicament.
    People will still be sentenced under these extreme laws. The prison population will continue to swell, pressing up against the 137.5% population capacity on a consistent basis. Few people will be released. And there is no way of building prisons on such an enormous scale so as to meet the 137.5% cap.
    A good start for a logical solution would be the creation of a committee of non-political academics, members of the Prison Law Office, retired judges, and economists with the power and authority to modify and update California’s sentencing laws within the Penal Code.
    In addition, such committee shall also create guidelines for true investment in rehabilative and educational programs for people while in prison, and importantly so, when released from prison.
    At present, each person is given $200 upon release and are expected to “succeed,” while $55,000 is invested per year to house them in prison. More intelligent investment should be made for those upon release.
    The CCPOA should be disbanded and the prisons should be privatized, as the private sector is much more efficient. However, such privatization should be closely monitored and regulated by the judiciary.
    As intelligent Americans, we must not be fooled with “kick the can down the road” tactics. We must insure the vitality and success of our fellow citizens albeit of where they are, for our current generation, and for our future generations.
    Thank you for your time and consideration.

    (This is but a minute analysis of this rather large problem.)

  2. Prisons represent the failure of families and churches, not the state. Moreover, the concept of rehabilitation is actually inconsistent with democracy and below the dignity of freedom loving people. We cannot brainwash people. Rather, we can only insists that you follow the rules or take the consequences. This is fair.

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