Sean invited me to share what perspective I have on the implications of Monday’s Supreme Court opinion requiring California to reduce its prison population by 33,000 (or 46,000, depending on which justice’s numbers you accept).
This is a personal blog post, and the opinions expressed here are my own and not those of the Urban Institute.
As a starter, I recommend Michael Gerson’s column in this week’s Washington Post. You could come to different conclusions about whether the Supreme Court did what it needed to do, but there’s little question that it was the California Legislature’s failure to do what it needed to do that obliged them to weigh in on the prison crowding issue. Gerson did a good job elaborating on this point.
Much of the commentary on the potential impact of the decision conflates prison population reduction with releases. Even the lower of the two numbers the justices flagged is big enough (there are 35 states that don’t have 30,000 people in their entire state prison system) that some number of early releases are going to be part of their strategy to reduce population. But much of the prison population reduction may come from incarcerating people in places other than California prisons. CDCR (California Department of Corrections and Rehabilitation) has already seen its adult institutional population fall by nearly 20,000 since 2006: over that same period, California went from a couple hundred to 10,000 inmates held in other states (Arizona, Mississippi and Oklahoma).
The recently passed “public safety realignment” plan (AB 109) would allow for holding sentenced felons in county jails for up to three years, as opposed to the previous limit of one year. It will not go into effect until the Legislature creates a community corrections grant program to assist with implementation, which has yet to be done. There are counties that have excess capacity in their jail systems (like Orange); others would presumably have to figure out how to drop their current population to make room.
Still, there are going to be some releases that will happen earlier than they would in the absence of overcrowding. This should be understood in the context of the 130,000 releases from prison that happen in the normal course of business in California. Practically everyone in prison gets out eventually, and the status quo for the people getting out now is pretty bad. CDCR Secretary Matthew Cate noted that crowding prevents the delivery of programming and contributes to inmate idleness. Crowding does this directly by forcing CDCR to have people sleeping in space where programming could be done, and indirectly by contributing to violence and disorder within facilities. In the aftermath of such incidents, inmates are locked down in their cells and can’t do anything. This is the situation from which huge numbers of prisoners are returning to the streets every day, right now.
If you’re wondering why the number of releases is nearly equal to the entire California prison population, about half are people re-released after a return for parole violations. Parole violators can’t be returned for more than a year, and the average time in prison for a parole violator is less than five months. A subset of parolees get sent back for violations over and over, and these “churners” eat up a substantial number of prison beds. This is why one strategy has been to make it impossible to return some parolees to prison by placing them on “non-revocable parole.”
The thing I’ll be watching in California is how, and whether, the state is able to resolve the tension between the mandate to reduce population and the reluctance to assume responsibility for risk management decisions. Prison (and jail) beds in California are a scarce resource, which requires thoughtful decisions about how they should be used. An illustrative example of how difficult this is to do in practice is the first case that came up for “medical parole” (i.e. letting people out who are incapacitated by medical ailments). How incapacitated is incapacitated enough to be an acceptable public safety risk in the community? Apparently, being a quadriplegic is insufficient.
Jesse Jannetta is a research associate in the Urban Institute’s Justice Policy Center. He directs projects relating to community supervision and reentry from both prison and jail. He is the project director for the Transition from Jail to Community Initiative, and the principal investigator for the process evaluation of the Transition from Prison to Community Initiative.
Before joining the Urban Institute, Mr. Jannetta was a research specialist at the Center for Evidence-Based Corrections at the University of California, Irvine, where his work included projects on GPS monitoring of sex offender parolees, policies on parole discharge and violation response, and assessment of the California Department of Corrections and Rehabilitation’s programs according to the principles of evidence-based design. He holds a master’s degree in public policy from the John F. Kennedy School of Government at Harvard University.