This just might be the year in which Californians see relatively substantial progress toward prison reform in the state as a number of intensifying forces converge:
* The state has been notified that if something is not done to alleviate prison overcrowding, federal judges may step in and impose a cap on prison population by June.
* The California Correctional Peace Officers Association, the prison guards union and a principal force behind the "three strikes" law and long an advocate of harsh sentencing, has done something of an about-face and come out for modest sentencing reform, including establishing a sentencing commission.
* Although Gov. Schwarzenegger's "emergency" session on prison reform last summer didn't produce much in the way of substantive action, he says he is committed to prison reform this year.
* And state Senate Majority Leader Gloria Romero of Los Angeles continues to push what has become her signature issue.
Some of those circumstances are political or artificial, but the conditions in prisons that are moving them forward are real enough. California now houses about 173,000 prisoners in facilities designed for about 80,000. Between 16,000 and 19,000 inmates are assigned to cots in hallways and gyms -- which means spaces designed for rehabilitation and vocational programs are not available for those purposes.
James Tilton, appointed secretary of the Department of Corrections and Rehabilitation in September, says the overcrowding amounts to a powder keg of the sort that in other states has led to prison riots.
California has one of the highest recidivism rates in the country, at 70 percent, which means prison becomes a revolving door for a certain sector of the population. The parole system loses track of about 20 percent of those supposedly under its control. According to former Sacramento Superior Court Judge Roger Warren, scholar in residence at the state's Judicial Council, "about half of those sentenced to prison every year are nonviolent offenders previously sentenced to prison but never for a violent crime."
If federal judges take control of the prison system in June, taxpayers may not be pleased. Judges, according to a report released in January by the state's Little Hoover Commission, "now control inmate medical care and oversee mental health, use-of-force, disabilities-act compliance, dental care, parolee due-process rights and most aspects of the juvenile justice system." Their usual methodology is to mandate higher spending. Federal receiver Robert Sillen announced Feb. 23 that he was unilaterally raising the salaries of prison doctors from $163,360 to $180,000-$200,000 a year to attract more qualified physicians. He previously said that he would "back up the truck to raid the state treasury" if that is what it takes to bring prison medical care up to snuff.
Having aspects of the prison system under federal receivership (the result of various successful lawsuits) has created a parallel management structure between the courts and the California Department of Corrections and Rehabilitation that has led to confusion and plummeting morale. Two previous secretaries of the Corrections Department resigned abruptly in 2006 before Tilton was appointed. Mike Jimenez, who took over as president of the prison guards union four years ago, told the Register Editorial Board last week that morale among his members is so low that 4,000 authorized positions are unfilled -- despite the union's success at increasing annual salaries (from $14,440 in 1980 to $54,000 in 2002) and benefits and becoming one of the most politically formidable forces in the state.
Origins of Today's Situation
All this is largely the product of decisions made some 30 years ago to get tough on crime by imposing longer determinate sentences. As the Little Hoover Commission report put it, however, "Despite the rhetoric, 30 years of 'tough on crime' politics has not made the state safer. Quite the opposite: today thousands of hardened, violent criminals are released without regard to the danger they present to an unsuspecting public."
The roots go back to 1976 when the Legislature, upset with inconsistent sentencing by judges under what is known as an indeterminate sentencing regime, set up a determinate-sentencing system, with relatively narrow guidelines for punishment for crimes and little discretion for judges. Like most reforms, however, it had unanticipated consequences.
For one thing, California also kept its parole system, with theoretically supervised parole of up to three years for every felon released. Under indeterminate sentencing parole had offered an incentive for prisoners to get out early if they behaved decently and did things like participate in vocational training or drug counseling. Under the current system every prisoner knows he or she will be on parole after release, and early release is based more on overcrowding issues than prisoner behavior. And because every released prisoner is on parole, the potentially dangerous former inmates who could use some supervision after release often don't get extra attention -- or, in practice, any effective attention at all.
In addition, dozens of new sentencing laws have been passed since 1976, creating a confusing patchwork of sentencing laws rather than the consistency the lawmakers desired. In hearings before the Little Hoover Commission, Judge J. Richard Couzens of Placer County outlined a hypothetical case in which a judge could have given a defendant anywhere from supervised probation to a 25-to-life "third strike" sentence and be in compliance with existing laws.
Sentencing Commission Proposed
Potentially the most significant step being proposed on all sides is the creation of a sentencing commission. The governor, the guards union and most Democrats in the Legislature have signed on to various versions, and the Little Hoover Commission recommended it. The federal government and 22 states now have such a commission. Independent of all branches of government and permanent, it would be tasked with reviewing all sentencing policies and proposals through evidence-based analysis. Its proposals would become law unless rejected by a majority vote in the Legislature.
Sentencing commissions are sometimes equated with shorter sentences, but commissions in North Carolina and Virginia imposed longer sentences for serious and violent crimes, with shorter sentences or alternatives like community-based programs for less-serious nonviolent crimes. The best sentencing commissions constantly accumulate and analyze data on the real-world consequences of sentencing policies so as to update policies based on evidence.
Other Proposed Reforms
State Sen. Majority Leader Gloria Romero of Los Angeles, perhaps the most active legislator on prison reform issues, told me that in addition to introducing a sentencing commission bill (SB110), she has introduced a parole reform bill that would "shift resources to the highest-risk parolees," and have gradations in parole length. Another bill would allow some nonserious, nonviolent offenders to be discharged directly, without parole.
She has also introduced a proposal (SB851) for new in-prison rehabilitative programs based on a program for mentally ill homeless people begun in 2000 that she believes has been largely successful and holds lessons for prison management.
The Senate has passed SB40, a response to the U.S. Supreme Court's Cunningham decision in January that declared unconstitutional one aspect of California's sentencing system -- add-ons by a judge based on information a jury had not heard or decided upon. So far the Assembly has not scheduled hearings.
The Little Hoover Commission has presented a detailed set of proposals for dealing with current overcrowding in prisons, including selective early furlough and getting other agencies with different kinds of expertise besides the Corrections Department involved.
Gov. Schwarzenegger last December offered a new $11 billion prison reform package that included some of the elements that didn't pass during his emergency session last summer and included 16,000 new beds on existing sites, 5,000 to 7,000 secure re-entry beds, 10,000 medical and mental-health beds and 45,000 local jail beds. There is talk of expanding Orange County's James A. Musick Facility near Irvine. But we can't just build our way out of this crisis, especially by June.
When the Register Editorial Board met with Mike Jimenez and Chuck Alexander, president and executive VP, respectively, of the California Correctional Peace Officers Association, I was surprised to find them backing several reform measures, including measures that would reduce the prison population. "We don't need more prisoners to bolster our union," Jimenez said. "We're already 4,000 authorized positions short, and as long as California's population keeps growing some of them will end up in prison."
The Little Hoover Commission suggested that if the governor and Legislature don't have the political will to enact reforms, they should turn the job over to "an independent entity modeled after the federal Base Realignment and Closure Commission." That commission, back in the 1990s, studied the question of which excess military bases should be closed and came back to Congress to be voted up or down, with no opportunity to offer amendments (as Congress members are wont to do in response to local pressures). It was a fairly drastic step, but it worked.
A More Fundamental Look
All these reforms would alleviate overcrowding and the dangers it poses, but more serious reform should include more serious, even radical rethinking of crime and punishment. It should start by relearning St. Thomas Aquinas' distinction between malum in se (bad in itself) and malum prohibitum (bad because prohibited) crime. A real crime in this understanding is one that actually and concretely hurts another human being, whether through force, violence, stealing, fraud or deceit. Crimes created by statute that don't involve damage to a victim are often statements about acceptable behavior that can be better handled by families, churches and community pressure.
The most obvious example in our current society is drug laws, which make the mere possession of certain substances illegal. This legal prohibition creates black markets with huge potential profits that encourage those most adept at concealment, intimidation and violence to supply drugs to those who want them. In the process they create all kinds of real crimes, from mugging to robbery to burglary, that would almost certainly not occur in the absence of prohibitory drug laws.
Until we relearn Aquinas' ancient wisdom, however, legislators have plenty of reason to get serious -- finally -- about the kinds of incremental reforms the governor, Sen. Romero, Irvine Republican Assemblyman Chuck DeVore and others have proposed. We'll be watching.
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