Penal Reform: California's Conundrum

A new bill enacted in California is changing the rules for parolees, coming to aid the reentry of offenders who completed their sentences back into society. The change is welcomed by policy experts, who note a crack in the punitive culture that has taken hold of the US corrections system for the past 40 years.  

"The interesting story about California is that it is an extremely overcrowded system, its recidivism rate is very high, over 70%, while many states have lower rates, Iowa for example, has a 30% rate. If California stops them from returning to jail, it will help," said Mr Busansky, Director of the National Council for Crime and Delinquency in Oakland, California, a civil society organization devoted to penal reform.

The United States leads the world in the size of its prison population, with less than 5 % of the world’s population it has close to one quarter of the world’s detainees in US soil. This human contingent behind bars is the result of a process that has, since the 1980’s lead to a 480% increase in the prison population.

Nowhere is this more pronounced than in the State of California, home to America’s largest prison contingent, crowded in 33 prisons, 22 of them built in the last 30 years. Strained to overcapacity, the California system has been described as housing 130% of its capacity, to practically 200%. According to an NCCD Task Force on Prison Overcrowding report, “Day-rooms, gyms, outside yards, and TV rooms have been converted into makeshift dormitories to house over twice as many prisoners as these facilities were intended to hold.” 

A first step has been taken to reverse this with the enactment of bill 3x18, authored by Senator Denise Ducheny from San Diego, a Democrat, to tackle post sentencing mechanisms that help make prisons “revolving doors” and keep that prison population inflated.

Bill 3x18 establishes summary or non revocable parole for low-risk parolees, so that parole violations will not send offenders back into jail.  It establishes and expands drug and mental health reentry courts, so that parolee violations will result in treatment instead of prison. It creates a ‘parole violation decision making instrument’ to assess a relapsed parolee’s potential to reoffend.

The time spent in jail is also tackled by the bill. The bill allows pre-trial detention time to be deducted from total sentencing period expected to serve. Parole violators will be able to substitute incarceration for electronic tracking devices. Finally the bill suggests guidelines to assess how successfully parolees transition back to the community.

The bill comes as fiscal pressure builds on governors to cut costs, California is going through an acute crisis, and the courts ordered the state to reduce the prison population of 165,000 by 56,000. The governor has appealed, and the Supreme Court has intervened lifting the order until it is reviewed in the Fall.  The new measures will affect all told, approximately 6 thousand individuals in its first year. But how significant is this new piece of legislation?

“Potentially it is very significant, depending on how far they go with their plan, the federal court ordered reduction by 40 thousand, state says 17 thousand, it varies, in any case, compared to what happened in the state over the last 30 years it’s a very significant shift in the direction of things happening there,” said Marc Mauer, (right) director of The Sentencing Project, a national organization promotes sentencing reform in the criminal justice system.

“California is at an extreme of very punitive sentencing and parole policies,” explains Mr Mauer, noting that the state’s ‘three strikes and you are out’ rule increases the likelihood that a third time offender face life in prison, and its practice of sending people back to prison for violating parole, mirror general trends in the US over the past 30 years, “the scale of the problem is much larger there than other states” said Mr. Mauer.

Mauer points out that California’s step towards reform is not only a reflex of local pressures but part of a larger pattern: “Many other states are trying to reduce the prison population also, for two reasons, fiscal crisis pressure to save money because prisons are expensive, and also a growing understanding that you get better results for public safety in helping prisoners transition back to community. A number of states have been trying to reduce their prison population, Kansas, Michigan, New York and New Jersey, have carried out reductions ranging between 5% and 20% in the last 20 years.”

Prisons do not increase public safety

Building prisons and sentencing offenders to jail have coincided with falling crime rates across the nation, but exposure to prison is however, associated with recidivism.

“The goal of a good justice system is to increase public safety, if we incarcerate it is because we think it improves public safety, but the literature says imprisoning does not improve public safety,” said Mr Busansky head of the NCCD. “I don’t think the public really understands how little safety the prisons give them, they know if the police arrests people it makes them safer… to keep someone in prison for 40 years and then pay their medical bills does not produce safety.”

Detainees cost more as they grow older, one estimate cited by Joane Faryon to KPBS News noted an individual’s costs triple once he or she reaches the age of 55, “from $50,000 it triples to $150,000 a year.” Faryon also noted that detainees are more likely than the general population to have been exposed to ills such as hepatitis C and HIV.

“The legislature wants to be tough on crime, the way it has found to be tough on crime is long sentences, but in reality, what it should be doing is making sure that public safety is increased”, said Mr. Busanky (left).

University of Chicago’s Professor of Criminal Justice, John Hagedorn has been consulted repeatedly to give testimonies in cases against gang members in Chicago and he describes gang affiliation as an aggravating factor for offenders “it often is an "enhancer," meaning gang membership can formally be taken into account to lengthen prison sentences. “I don't know if it that is the case in California, but prosecutors will always use "gang involvement" to argue for longer sentences or the death penalty.”

“There is growing interest in looking at changes in policy, mainly to reduce the number of mandatory sentences, divert drug offenders into treatment rather than prisons, and have non violent offenders spend less time in detention. The amount of change though, is still relatively modest.” said Marc Mauer.

More bills are in being submitted to make sure that information is available to promote change. The Justice Reinvestment Act is amassing growing support, backed by both Democrats and Republicans,

“The Justice Reinvestment act is an important piece of legislation, it will allow us to move towards a better distribution of resources, more funds to local programs to supervise offenders in communities and allow states to reduce the prison population” said Marc Mauer, who added that the fiscal crisis is providing an important opportunity to reevaluate the system. “It’s a very good time to examine how to approach the problem of crime, for 40 years our primary approach has been to build prisons and send people to prison,” Mauer stressed the need for investment in prevention and treatment, in initiatives to strengthen families and communities as preventative measures and alternatives to incarceration so offenders are not sent to prison in such high numbers.
 
“I think much of the problem we face in the US is a political one, its not lack of knowledge, it is more a question of political leaders having embraced political slogans as our crime policy, and it has been very harmful, we need to move in the direction of being more data driven” said Marc Mauer.

Photos:

Cover: Solano Penitentiary, California (CDCR website)

This page: Corocoran Penitentiary, California (CDCR website)

Mr. Busansky: © University of Washington School of Law