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May 26, 2011

Is California so dysfunctional that doom and gloom is the right reaction to Plata?

Cal prison population Regular readers likely realize that I see much of the doom and gloom coming from the Plata dissenters and from some commentators to be overheated reactions to the Supreme Court's decision to affirm the prisoner release order requiring California to significantly reduce its prison population.  Experiences in Texas and New York and a number of other states show that astute sentencing and correction reforms can allow a significant reduction in a state's prison population without a severe adverse impact on public safety.  Thus, I do not believe a huge Golden State crime spike is a necessary (or even likely) consequence of the Plata ruling if California responds reasonably and effectively to the population reduction order.

That said, two new pieces appearing in today's Los Angeles Times has me fearing that California's politics and practices may be so dysfunctional that perhaps the state will fail to be able to respond reasonably and effectively to the Plata population reduction order.  For starters, consider this piece headlined "No easy fix for California's prison crisis; Even if a court order to ease crowding can be met, sentencing laws could fill lockups again, analysts say," which reports on these on-going realities:

[W]ithout sweeping policy changes, the state will still send high numbers of offenders to prison under "three-strikes" sentencing laws, put about 70% of parolees back behind bars for violations within three years of their release and keep ambitious prison construction plans on hold for lack of money, according to experts and inmates' advocates....

Gov. Jerry Brown's plan to ease crowding would move inmates convicted of low-level and nonviolent crimes into the custody of county officials. The nonpartisan Legislative Analyst's Office estimated that as many as 32,500 such inmates could be transferred in time to meet the court's two-year deadline.

But Brown's plan requires the state to pay local officials hundreds of millions of dollars to help them cope with the influx, and the money would come from tax increases or extensions that are politically controversial. So far, there's no guarantee the state will come up with the money or would continue to provide it indefinitely, although Brown wants a constitutional guarantee that Sacramento could not cut funding to the counties....

Loyola Law School professor Laurie Levenson, a former federal prosecutor and veteran criminal law scholar, points to the high recidivism rate and past cuts in funding for prison rehabilitation and education programs as a formula for continued — even worse — crowding. "We have to stop the insanity of sending nonviolent drug offenders and low-level theft offenders to prison for life," Levenson said. "Nobody is saying we should let murderers out.... We have to stop the revolving door of parolees being returned for minor violations."

Compounding the situation is Jessica's Law, the 2006 initiative barring sex offenders from living within 2,000 feet of schools or parks, making it difficult for California's 92,000 released sex offenders to comply with that parole condition, especially in large cities.

In 2009, the most recent year for which the California Department of Corrections and Rehabilitation has statistics, almost 85,000 parolees were sent back to prison, most of them for two- and three-month sentences. That forced the state to erect three-tier bunks in sports halls, where parole violators spend their terms in the company of hardened criminals and without access to the minimal educational and rehabilitative programs that the corrections system retains after years of budget cuts.

With the average number of parolees in California at 127,383 on any given day, the state's overcrowding problem is bound to reemerge unless substantial changes are made to sentencing laws, parole conditions and in-prison rehabilitation programs, Levenson said.

Drug counseling and education have been severely hampered by overcrowding that has spilled into gymnasiums and meeting rooms. "There's no space and no money" for those programs, said [Michael Bien, whose law firm launched a 1990 case addressing poor mental healthcare in California prisons that ultimately led to Monday's ruling].

Even more distressing than these chronic challenges facing California are more acute problems such as the one reported in this piece, headlined "Computer errors let violent California prisoners go free; A computer system that lacked key information about inmates factored in the release of an estimated 450 prisoners with a "high risk of violence," according to the California inspector general." Here are the worrisome details:

Computer errors prompted California prison officials to mistakenly release an estimated 450 inmates with "a high risk for violence" as unsupervised parolees in a program meant to ease overcrowding, according to the state's inspector general. More than 1,000 additional prisoners presenting a high risk of committing drug crimes, property crimes and other offenses were also let out, officials said.  No attempt was made to return any of the offenders to state lockups or place them on supervised parole, said inspector general spokeswoman Renee Hansen.

All of the prisoners were placed on "non-revocable parole," whose participants are not required to report to parole officers and can be sent back to prison only if caught committing a crime.  The program was started in January 2010 for inmates judged to be at very low risk of reoffending, leaving parole agents free to focus on supervising higher-risk parolees.

The revelations come two days after the U.S. Supreme Court ruled that California's prisons are dangerously overcrowded and upheld an earlier order that state officials find a way to reduce the 143,335-inmate population by roughly 33,000.  The state has two years to comply. State Sen. Ted Lieu (D-Torrance), a former prosecutor who requested an investigation of the unsupervised-parole program, said the inspector general's report "confirms my worst fears" about it.

Investigators reviewed case files for 200 of the 10,134 former inmates who were on non-revocable parole in July of last year. They found that 31 were not eligible, and nine of those were determined likely to commit violent crimes.  The inspector general and corrections officials refused to identify the inmates who were released erroneously. They also would not specify what their original offenses had been.

Using the 15% error rate they found in their sample, investigators estimated that more than 450 violent inmates had been released during the first seven months of the program, the time period they reviewed.  Prison officials have disputed the findings, saying they had corrected some of the computer problems discovered by the inspector general.  The error rate is now 8%, the inspector general report says.

Gov. Jerry Brown's plan to address overcrowding would shift tens of thousands of low-level offenders from prison to county custody.  Counties would also supervise most low-risk parolees, like those in the non-revocable program.

But if the state can't properly identify which inmates qualify for an unsupervised parole program, Lieu said on Wednesday, "how can the public have confidence they can release 33,000 felons safely?"

Under the law that created non-revocable parole, inmates are excluded if they are gang members, have committed sex crimes or violent felonies or have been determined to pose a high risk to reoffend based on an assessment of their records behind bars.  That's where the problems begin, according to the inspector general.  The computer program prison officials used to make that assessment does not access an inmate's disciplinary history.

Prior posts on the Plata ruling:

May 26, 2011 at 09:37 AM | Permalink

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"Experiences in Texas and New York and a number of other states show that astute sentencing and correction reforms can allow a significant reduction in a state's prison population without a severe adverse impact on public safety."

Suppose the impact on public safety is significant but not "severe." Is that OK?

"Thus, I do not believe a huge Golden State crime spike is a necessary (or even likely) consequence of the Plata ruling if California responds reasonably and effectively to the population reduction order."

Same question. Suppose the crime spike is not "huge" and is instead "pretty big." Is that OK?

There are two problems. One is just getting specific facts. That is, we're not going to get very far using characterizations like "huge" or "pretty big." We need FACTS, not characterizations.

Thus, a system should be implemented whereby the state records each crime committed by an inmate released under the court's order. It might turn out that the resulting number will be such that the electorate will think the crime spike is indeed "huge." Or big. Or small. Or virtually non-existent. We don't know; everyone is just guessing. We need the number. I hope the state (and the courts) won't try to keep us ignorant by refusing to keep track and let us know.

If the number is very small, those now crying chicken little will have occasion to reassess their gloom. If the number is very big, those presently complacent will have occasion to reasess their giddiness. But we need the number. Any objection to that?

The second problem is harder to solve because it involves a value judgment. Suppose ten people released each commits a murder the day after he's set free. Is that "too much," in light of the advantages of having better medical care for the thousands who remain incarcerated?

I offer no answer myself (I actually want to wait for the number). Some here would say that, by its irresponsibility, California has assumed the risk, so the murders are just too bad. Others will say that the state's irresponsiblilty goes back too far in time and is too diffuse to justify de facto acceptance of murder (the consequences of which fall, of course, on a very small number of people, and really are not socialized)(e.g., a ten year-old get murdered by a releasee on the first day of his freedom. In what sense can the ten year-old be said to be "responsible" for the conditions that brought about the release?).

Posted by: Bill Otis | May 26, 2011 11:15:53 AM

Bill has framed the issue well. We know there will be an impact on public safety-the only issue is the severity and how much crime we are willing to tolerate.

The conduct of these releasees should be tracked closely so that we have this information available for public scrutiny and discussion.

Posted by: mjs | May 26, 2011 12:13:41 PM

Yes, agreed. Stats would be nice - indeed, they are obviously vital - and I hope the state will hold CDCR far more accountable to properly keep accurate stats. As the original post indicates, the massive ineptitude in CDCR is pervasive, and includes their record -keeping and data management. It should be said, that in addition to erroneous releases described in the story, there are a great many cases of prisoners whose time has been over-calculated and who have spent years of additional time locked up due to nothing else than CDCR calculation error.

Posted by: anonymous | May 26, 2011 12:15:56 PM

Bill, the ten year old wouldn't be to blame under your example, but the parents would be indirectly if they supported all the penalty-hike initiatives, and more to the point, California state government bears the ultimate responsibility. Actions have consequences, and passing tuff-on-crime laws without paying for incarceration falls into that category. The same goes for Californians who bought houses with ballon payments on their mortgages they couldn't afford. However much they may like the nice, large home, if they can't pay the mortgage they don't get to stay there forever. That's the position the tuff-on-crime crowd in CA finds itself in now. If Mom and Dad's decisions mean their kids end up homeless, it's no different than the blameless 10-year old in your example. But I assume you wouldn't support failing to enforce eviction notices just because the borrowers have kids.

As for "Suppose ten people released each commits a murder the day after he's set free," let's simultaneously suppose that dogs quack and ducks bark. It's absurd to pose an immediate 100% recidivism rate, much less that they'll all commit murders. That example doesn't promote productive debate, it's just demagoguery.

The dictates of modern budget realities are non-ideological. CA's real problem is dysfunctional politics stemming from the initiative and referenda process, which is a) why they can't raise taxes to build more prisons and b) what's filling their prisons up with 3-strikes lifers, Jessica's Law offenders, etc.. Texas' example was cited, but about 6% of TX inmates are serving "life" sentences, compared to 20+% in CA. Also, Texas has a much more robust parole function, with parole rates increasing 19% since 2006 while crime simultaneously declined. TX prisons release more than 70,000 people per year - more than CA though they're a much larger state. Yet Texas undeniably has a "tuff on crime" reputation and California is supposedly "liberal." Such characterizations say to me that these issues don't really fall along liberal/conservative lines, though many people desperately seem to want them to.

Add to the I&R problems an intense, dysfunctional partisanship at the Lege and it may well be that California is unequipped to deal with the SCOTUS ruling. But the reasons all stem from problems of the state's own making, and those same problems will persist regardless of how the state chooses to comply with the court order.

Posted by: Gritsforbreakfast | May 26, 2011 12:34:54 PM

Actually the bad guys that our referencing Bill, hopefully will not be the ones that will be getting out.. It sounds like Gov. Brown is going to try and have lower risk inmates go to county jails and half way houses.. Good luck on finding a bed there as well...They need to address their 3 strikes law, for future defendents... Current ones need to be reevaluated on a case by case basis....As a 3rd strike low level offenders should be transitioned to a halfway house for a while to get used to lives, then discharged.. Technical infractions of parole need to be forgiven.. ALl who are in for mickey mouse parole violations, need to be released immediately...They already did their time...

I think Californian is not up to fixing much of anything...Its their nature....Cry to lock'em up in a dog cage and wonder why the guards get spit on....etc...enough said...

Posted by: Josh | May 26, 2011 1:55:49 PM

The horrors of the California prison system (and that in other states) illustrates what prominent scholars have said for years: “American punishment is comparatively harsh, comparatively degrading, comparatively slow to show mercy.” James Q. Whitman, Harsh Justice (Oxford Press 2003). “Contemporary policies concerning crime and punishment are the harshest in American history and of any Western country.” Michael Tonry, The Handbook of Crime And Punishment (Oxford Press 1998) paperback ed. at page 3

Posted by: Michael R. Levine | May 26, 2011 7:10:01 PM

"Bill, the ten year old wouldn't be to blame under your example, but the parents would be indirectly if they supported all the penalty-hike initiatives . . . ."

This is colossally dumb (surprise surprise). First of all, can we blame every single Democrat in Austin for the murder committed by the illegal alien who got to stay in Austin because of that city's sanctuary policy? Second of all, let's not forget that the criminals are the ones who caused this problem in the first place. Third of all, what about the blame that needs to go to the crowd that doesn't enforce the laws about illegal aliens--how much of California's prisons are illegals and their progeny? Fourth of all, this idea that a vote makes you responsible for your kid's death attributes blame so out of proportion to the action. It's more an ideological gambit than anything else--you must be an Obama supporter--by the way, how's that working out for you?

Posted by: federalist | May 26, 2011 9:03:32 PM

Grits, please tell us where you live. I want to condemn the houses of your neighbors on all sides of yours. Take them under Kelo. Then set up 8 released inmates from California in each, in accordance with another Supreme Court decision saying a zoning variance is not needed for 8 strangers or fewer to live together.

It is easy to say, dump nuclear waste in Nevada or release criminals to Compton, CA. Easy but hypocritical. Unless you and the Justice Kennedy are willing to have them move close to your families, both of you should shut the eff up. When Justice Kennedy speaks, it is like nails across a blackboard for me.

Posted by: Supremacy Claus | May 27, 2011 5:25:28 AM

Good starting point.

If there are state prison inmates who offended the feminist agenda, they should be released and supervised. For example, anyone who has not paid child support. Who has viewed child porn. Anyone falsely accused of stalking, of date rape, of statutory rape, of sleeping with a student over age 14. Of child abuse which is really a Southern style of child rearing preferred by the Black community, and punished by the feminist lawyer.

Posted by: Supremacy Claus | May 27, 2011 8:43:09 AM

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