Federal judges Thelton Henderson of San Francisco and Lawrence Karlton of Sacramento lost patience with California’s out-of-control penal system last month, and set in motion what could turn out to be a revolutionary rethinking of the way the state punishes lawbreakers.
They ordered the creation of a three-judge panel to bypass the political whims and pressures of Sacramento lawmakers and produce their own study on how to tame an ever-burgeoning prison population. The top solution being considered is whether to cap the population, and what steps, including home detention and drug-prevention programs, could be used to reduce the number of people behind bars.
Gov. Arnold Schwarzenegger has filed an appeal of what amounts to a judicial takeover of at least part of the management of the state prison system. He claims the state is well on its way to ameliorating the crisis without intervention. The governor cites his transferring thousands of prisoners out of state and a $7.4 billion plan to build new prisons as evidence of his good deeds. Critics dismiss his plan to send inmates to Mississippi, Tennessee, or Arizona and his prison construction plan, outlined in Assembly Bill 900, as proof of just how off-kilter our approach to law and order has become.
“What’s criminal about [AB] 900 is that there was supposed to be sentencing reform attached to it, but the reform part got cut off,” says Dave Fratello, co-author of Proposition 36, the initiative approved by voters in 2000 that called for drug treatment instead of incarceration for first- and second-time, non-violent drug-possession offenders. “It shows how spineless our political system is … there’s only one right answer on criminal justice.”
For three decades, that answer has been a keep-getting-tougher approach that keeps digging us in deeper. Since sentence enhancements became a dominant feature of our judicial landscape in the late-’70s, prison capacity has tripled; during the same period, tougher sentencing laws have caused the prison population to mushroom by more than 800 percent. In the last 30 years, Sacramento has issued some 1,000 bills lengthening jail terms. There are now 173,000 inmates in spaces designed for 100,000.
What all this means, critics say, is that perhaps the federal court’s new panel actually gives California a golden, if embarrassing, opportunity to rethink some seriously flawed policies. Just as some urban planning experts are warning that we’ll have to choke on our own traffic jams before we’ll wean ourselves from auto-dependence, so some governmental analysts are arguing that mandatory prison population caps are the only measures severe enough to shock the system into re-evaluating the entrenched sentencing requirements clogging the system.
To say our state’s prisons are grossly, unconscionably filled beyond capacity is akin to noting that the Pope is Catholic. Some 17,000 inmates are currently not housed in cells at all, but are warehoused in formerly communal spaces like recreation rooms, gyms, and hallways, adding insult to injury as overcrowding pushes out rehabilitation programs along with any semblance of a civilized existence. For years, politicians have called these arrangements an embarrassment, yet still they exist. And that’s ironic, according to Fratello. If the state ceased sending minor drug offenders to do hard time, 10,000 inmates could be freed immediately. But that’s only “if we’re willing to be really forward thinking and smart, which there’s no evidence anyone wants to be,” he says.
As it is, in a 2006 report, the Justice Policy Institute determined that Proposition 36 kept 14,000 potential inmates out of the prison system, and accomplished that on a skimpy budget. A UCLA study said the program needs an infusion of $100 million to be considered optimal funding. Currently, due to extraordinary budget pressures, Prop. 36’s measly $120 million funding could be in jeopardy when the state Senate reconvenes later this month, Fratello says, despite the fact that the state typically pays more than $30,000 to house one inmate for one year. “It’s a sickness in the system that we have to scrape and claw for minimal funding for treatment that changes people’s lives and ends people’s criminal careers, when by contrast it’s so easy to throw money at a solution as long as it locks people up,” Fratello says.
Perhaps voters have a right to wonder what all that taxpayer funding is buying them. “Keep in mind that mass imprisonment is no guarantee of safety,” says UC-Berkeley law professor Jonathan Simon. “California experienced significant declines in violent crime during the 1990s while it was locking up record numbers of offenders, but our decline was no better than most states that did not incarcerate at nearly the same rate, and some relatively low incarcerating states, especially New York, did significantly better. Indeed Canada, which has very low incarceration rates compared to California, did just as well.”
Who exactly are we locking up? “There’s a lady in prison now for stealing baby formula for her infant,” says Donna Warren, a spokesperson for Families Against California’s Three Strikes. “Kelly Turner is doing 25 years for writing a bad $500 check to Nordstroms … . There are 4,438 people now doing life for non-violent crimes.”
Fratello estimates that overall, half of our current prison population is considered non-violent. According to Simon, 2005 demographics show that a third of the inmates are locked up for non-violent property crimes, drug charges, or a range of other mostly public order offenses.
“It’s reasonable to suppose that many of these offenders could be handled in the community without setting off a wave of feared crimes,” says Simon, who also co-directs the Berkeley Center for Criminal Justice and is the author of the recent book, Governing through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear. But beyond those who have yet to commit a violent crime, Simon adds that there’s a great deal of criminological research suggesting that almost all offenders – including those who commit serious and violent crimes – are not likely to commit a crime after age 45 or so. These studies have shown that even persistent offenders give up the habit after middle age. “In 2005, more than 36,000 prisoners were 45 or over,” Simon says. “Most of them probably pose little risk if released.”
As for why our legislators can’t keep their hands off the sentencing button, Simon has a theory. “I believe the main explanation lies in the perverse incentives of term limits.” These limits, he says, have created a system demanding legislators make their mark quickly in order to hop from the Assembly to the Senate and on to statewide offices. To do that, a legislator must sponsor a lot of legislation that actually gets enacted, and sentence enhancement bills don’t have very many influential interests to oppose them, while health care and education reform or economic policy changes invariably draw oodles of powerful opposition. Furthermore, term limits offer the added bonus of ensuring that “legislators are not around long enough to get blamed for big structural problems like the prison crises,” Simon adds, meaning it’s going to take more than term- limits reform to effectively eliminate the incentives for tough-on crime legislation, but it wouldn’t be a bad start.
Until then, “Our best hope to achieve more dramatic gains is a charismatic governor willing to build a state wide consensus behind a different approach,” Simon continues. “Arnold Schwarzenegger, who is constitutionally barred from being president and probably doesn’t want to go the U.S. Senate is our best chance in decades. Stay posted.”
For the moment, however, not everyone is as optimistic about Schwarzenegger’s leadership. This spring, the Northern California-based Critical Resistance, an organization protesting what they see as California’s over-reliance on using prisons to treat social ills, says they headed up to Sacramento and handed out copies of their pamphlet 50 Ways to Reduce the Number of People in Prison, but to little avail.
“Our point is, there’s a myriad of ways to reduce the prison population tomorrow,” says Rose Braz, a Critical Resistance campaign director. “We just don’t have the political will. When Schwarzenegger first got into office, he said some really promising things … but very, very quickly that changed and now Schwarzenegger is showing no leadership on this issue and we see things are only getting worse.”
Meanwhile, even the federal judges themselves singled out Schwarzenegger’s AB 900 in particular for criticism, as an idea that could only exacerbate the difficulties of managing the state’s already unwieldy system.
“It’s the largest prison expansion plan in the history of the world,” opines Braz.
Currently, the prison system consumes $10 billion a year overseeing 173,000 inmates. AB 900 is a bond measure borrowing $7.7 billion more to construct 53,000 beds, many of which would come online in 18 to 24 months. That’s too long to wait to achieve dicey results at best, according to Braz. “The federal judges flatly said building will only make the problem larger,” she says. “AB 900 is not a prescription for change, and thanks to 900, we’ll soon be spending more on our prison system than our educational system, despite poll after poll after poll showing that voters don’t support funding prison expansion.”
In fact, in past years, voters here have done more than that; they’ve actively voted down bond measures earmarked for prison construction. In light of these past failures, Braz says the state legislature essentially pushed AB 900 through a loophole.
“When California voters rejected prison construction bonds, the legislature created a fiction,” she says. According to Braz, California’s two methods for approving debt separate out general obligation and lease-revenue bonds – the former must be approved by the public, the latter don’t because they’re typically earmarked for projects like toll bridges, which eventually pay for themselves. “The legislature said, ‘Let’s say prisons are revenue generators, because the department of public works will build them and lease them to the department of corrections,”’ Braz says. “It’s not simple to explain what they’re up to, but the simple way to say it is: the voters have a right to approve debt.” And another calculation getting left out of the equation, she says – paying back AB 900’s $7.7 billion debt is likely to jump to $15 billion once all is said and done. “It violates the letter and the spirit of the constitution,” she says.
Indeed, this all might be much simpler if we just let some inmates walk out of prison. State Sen. Gloria Romero, a Los Angeles Democrat, is hoping that the governor signs her bill calling for a study of which inmates could be released before finishing their sentences.
~ By MINDY FARABEE ~Los Angeles City Beat
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