Last spring, I opened an article I’d written on America’s prison system with what I thought was a particularly jolting lead about a Supreme Court decision. In 2011, the Supreme Court had upheld a ruling by a federal court that the conditions arising from the over-crowding constituted “cruel and unusual punishment” for inmates. At the time, I thought it was a kind of snazzy way to get the article going with a bang. The judicial height to which the issue had risen coupled with righteousness awakened by an invocation of the Bill of Rights seemed like a turning point on the issue of America’s hyper-incarceration. Yet despite all this ruling’s rhetorical strength, it translated into a drawn-out process that failed to address any of the issues at its core.
In upholding the decision of a three-judge panel, the Supreme Court supported the panel’s order for California to reduce its prison population until it was at 137.5% of capacity. This meant that California Governor Jerry Brown was responsible for decreasing the population by roughly 33,000 inmates in two years. Gov. Brown proceeded to simply move prisoners around from state prisons to county jails. Supporters of this process, which is called “realignment,” claim that counties do a better job of housing prisoners at a lower cost. It also lowers the official incarcerated population on paper. The real life effect is that jails are crowded and counties are responding by building more jail space. Brown did have an admittedly daunting task, but his knee-jerk reaction of keeping as many locked up as possible while shifting costs to counties that have suffered considerably under the added financial strain was almost a crystalline example of everything that is wrong with America’s approach to the penal system.
These days, a bit of optimism in the observer of America’s judicial system does not feel totally unwarranted. Attorney General Eric Holder announced in August his intention to start reforming mandatory minimum laws, which have long been accused of swelling prison populations, unfairly targeting minorities, and often leading to sentences far outsized for the crime. Furthermore, it’s worth remembering that California’s problems are not an underground horror story, but an issue that federal judges are so adamant about that they have threatened to hold Gov. Brown in contempt of court if he does not meet the population decrease they stipulated. However, Gov. Brown’s attitude and rhetoric can deflate even the most optimistic mind. His approach manages to encapsulate all the basic elements of America’s penal system that have gotten the country into this mire.
The official deadline to reach a prison population at 137.5% of capacity was June 2013. In January 2013, Gov. Brown still had about 10,000 inmates to go to meet the federal mandate. Brown declared that the prison crowding crisis was over. The courts told him, as a matter of fact, it was not, although he could have five more months to bring the population down. Brown then emerged with a plan to relocate prisoners to private prisons, in and out of state, which would cost California $315 million in the first year and $415 million for the next two years.
“This is the sensible, prudent way to proceed,” said Gov. Brown. In his eyes, it is sensible and prudent to not let a single inmate go early, and to sink millions of dollars into maintaining a fiscally untenable and morally questionable system. Ironically, while railing against the court’s firm stance, Brown has exclaimed that California “can’t pour more and more dollars down the rat hole of incarceration.” I’ll say, Governor Brown.
State senators, led by Darrell Steinberg, rallied against the plan. Their proposal was that funds go toward providing grants and tax incentives for counties to increase rehabilitation, drug treatment and mental health programs at sentencing. This would cost less than Gov. Brown’s plan, clocking in at $200 million during the first two years, and $300 million after that. Although the calculus of Steinberg’s plan is not publicly elaborated more clearly than this, studies have shown that the cost per inmate of treatment is less than that of incarceration. And those studies are just talking about the average cost per inmate; California has a particularly high cost per inmate at $47,421 average per inmate per year, making treatment an especially fiscally responsible alternative. Steinberg’s plan is the sort of approach to incarceratory reform that keeps that optimism mentioned earlier on life support.
The situation feels almost too clear-cut, like a textbook offering up a simple case study. Here you have Brown who is in favor of just throwing more money at the problem, and further, throwing money at prisons owned by private corporations. Private prisons are a disturbing (almost dystopic) side of capitalism that would profit off of more people spending more time being incarcerated. (Not to mention the fact that they have fewer resources for prisoners and have a track record of abusing inmates.) On the other side, you have a plan that would attempt to start untangling the problem in a manner that focuses on helping people get out of the cycle of incarceration while also being more cost-effective. Lose, lose versus win, win.
Governor Brown and his legislators convened and a deal was struck. They put the decision in the hands of the three-judge federal panel. Basically, the court had to extend the deadline for the prison population cut-off for Steinberg’s plan to go in effect. If they refuse to do this, then Brown’s plan is a ‘go.’
All that being said, what both plans are avoiding is letting prisoners go early. Over and over, the phrase letting prisoners “onto the streets” is invoked; it is at once an expression simply meaning that prisoners will be reentering society, but the phrasing conjures up the image of desolate urban streets filling up with unsavory characters who will wreak havoc on the populace. The courts have requested that the administration prepare a list of “low-risk” offenders, but the the Governor’s camp steadfastly refuses to concede that some prisoners might not pose an immediate danger to society.It’s worth noting that California’s populace is not in favor of the early release of prisoners. Forty-seven percent of Californians are very concerned about the early release of prisoners, while 31% are somewhat concerned. Only 7% are not at all concerned. It does not feel right advocating from a comfortable distance away that prisoners be released, but to be clear, ‘releasing prisoners’ in this context does not mean a haphazard selection of inmates simply walking out of the doors. The released prisoners would be, for example, juvenile offenders who have served fifteen years or geriatric prisoners who are medically infirm. The term ‘releasing prisoners’ means expediting the release of inmates who are in situations that have legal or reasonable grounds to leave prison. The apprehension of Californians is understandable given the fear-mongering rhetoric that the incarceratory culture of America regularly employs, but the goal should be to prove that their fears are based on the ideology they’re fed rather than the facts at hand.
Another key population that would be reevaluated is the glut in California’s prison population due to its controversial (and ultimately repealed) three strikes law. A three strikes law is a statute that requires that courts deal harsher sentences to habitual offenders. The California law came into being in 1994 after a horrific crime that riled the citizenry. The statute mandated a life sentence for any individual convicted of a crime of any sort who had previously convicted two “serious crimes.” During its implementation, courts defined “serious” crimes much more broadly than murder, rape, child molestation and armed robbery. This is the law that led to stories of homeless drug-addicts who got life sentences for three cases of petty theft. Even though that law was repealed in 2012, and some lawyers have put significant energy in reversing the most egregious sentences, the numbers show that California’s life-sentenced population is inordinate. Nineteen percent of California’s prison population was comprised of lifers at the end of 2012. This is especially powerful when comparing this with the national percentage of convicts with life sentences (10%). To continue putting these numbers in perspective, California’s life-sentence population makes up a quarter of all life sentences in the overall prison population. Due to these sorts of long sentences, the average age of prisoners is skewing upward in California. An older prison population is both more costly, due to medical care that the aged inevitably require, and also impractical given that the national recidivism rate is only 2% for inmates over 55 years of age (versus the 50% rate for 18-29 year olds).
Nevertheless, the Public Policy Institute of California published a fact sheet on its prison population in June 2013 advertising that “a vast majority of prisoners have committed violent or serious offenses.” It goes on to elaborate that 88% of the population was incarcerated for violent or serious felony convictions. The Institute neglected to publish a more detailed breakdown of this statistics. (For starters, what do they mean by ‘serious offenses’ when this term has been historically vague in California’s judicial system? How many crimes are included under the expansive “or” conjunction?) The most recent publicly available statistics report that the breakdown of California’s prison population by crime at conviction is from before the decision was handed down from the Supreme Court. It shows roughly 55% were in prison for crimes against other people, 19% were for property crimes, 17% were for drug crimes and rest were classified as “other.” The breakdown of raw numbers is critical here. “Crimes against other people” was the expression used to describe the conviction for 93,674 inmates while 75,156 inmates were reportedly jailed for property-related crimes, drug-related crimes or other crimes. Even though 24,000 petty offenders have been reallocated to county jails, the state prison population has not been whittled down to solely the hardened and dangerous criminals – as both the Public Policy Institute of California and Governor Brown would have you think.
Given the ultimatum between the two plans, the three federal judges chose to extend the deadline for another month. The date is now set at Jan. 27 by which time approximately 9,600 prisoners must be removed from California’s prisons. The judges ordered the state of California to use the time to construct “a durable solution to the prison crowding problem.” However, just hours before this decision, California signed a contract with Geo Group, the second largest private prison contractor in the United States. The courts have given more time for more discussion, but rather than leading to common sense reform, it seems that in the end money talks the loudest.