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In California Prison Fight, At Last, a Bright Idea

Two new financial proposals are now in play to curb the state’s overcrowded prisons. One plan keeps the prison population static, the other reduces through smart rehabilitation incentives.

Published: September 4, 2013


After defy­ing the federal courts for years over the deplor­able condi­tions in their state pris­ons, Cali­for­nia offi­cials seem to be moving closer to offer­ing an age-old Amer­ican solu­tion: they are plan­ning to throw a lot of money at the prob­lem and hope it goes away. There are two new finan­cial propos­als now in play. One is new and forward-look­ing. The other is old and tired. One could very well work to ease the state’s prison crisis. The other is based on the very premise that created the prob­lem to begin with.

The federal courts, includ­ing the United States Supreme Court, have consist­ently ordered Cali­for­nia to ease uncon­sti­tu­tional over­crowding in state penit­en­tiar­ies by, among other things, grant­ing early release to thou­sands of pris­on­ers. State offi­cials have imple­men­ted some of the reforms deman­ded of them by the judi­ciary. But Cali­for­nia has refused to release most of those inmates—send­ing them instead to county jails (where they are often released early anyway) or simply stalling for time by trying to re-litig­ate the same Eighth Amend­ment issues they’ve already lost at every appel­late level.

Tired of losing in court, and know­ing that the federal judges presid­ing over this long-running case are poised to consider contempt sanc­tions against him, Gov. Jerry Brown last week proposed to spend $315 million this year and over $400 million more in each of the next two years to house approx­im­ately 10,000 inmates—the ones whose release from prison has been deemed neces­sary by the courts—in private pris­ons or county jails. Just one day later, after a factu­ally meager debate, the State Assembly approved $315 million for such “altern­at­ive hous­ing” for the inmates.

In the mean­time, another group of Cali­for­nia lawmakers, in the state senate, have offered their own solu­tion. They propose to spend a similar amount of money ($200 million per year for two years) in the form of incent­ive grants to counties to expand their rehab­il­it­a­tion, drug and mental health treat­ment programs. The proposal is based upon the success of Cali­for­ni­a’s “Proba­tion Perform­ance Incent­ive Fund­ing Program,” a 2009 meas­ure that awards counties that reduce the recidiv­ism rate of proba­tion­ers within their juris­dic­tion. Accord­ing to a 2012 report by the Pew Center:

In the first year of imple­ment­a­tion, the state proba­tion fail­ure rate—the number of proba­tion­ers sent to state prison divided by the proba­tion popu­la­tion—­de­clined from 7.9 percent during the baseline years of 2006–2008 to 6.1 percent in 2010, a 23 percent reduc­tion in revoc­a­tions. The Cali­for­nia Depart­ment of Finance estim­ated that because of this reduc­tion 6,182 fewer proba­tion­ers entered state prison in 2010, gener­at­ing state savings of $179 million.

Inimai Chet­tiar, director of the Justice Program at the Bren­nan Center for Justice, told me Tues­day that finan­cial incent­ives like this proposed one make sense in both the short- and long-term. “These types of perform­ance-based fund­ing struc­tures can usher in a new wave of crim­inal justice decision-making that can move us away from a mass incar­cer­a­tion model. Cali­for­ni­a’s 2009 program is among the most success­ful in the nation and can serve as a model for Cali­for­nia and the rest of the nation.”

So let’s recap. In a state already drown­ing in expenses asso­ci­ated with its vast penal system, Plan A is the governor’s proposal to spend more money on pris­ons without doing anything to reduce the number of total inmates in the system. Plan B, mean­while, is specific­ally designed to reduce that popu­la­tion by means of incent­ives that already have been proven to work in the context of proba­tion. Plan A repres­ents yet another obvi­ous govern­ment gift to the private prison lobby. Plan B repres­ents a market-based approach that rewards local offi­cials who are creat­ively work­ing to reduce the size of the foot­print the state’s pris­ons have upon Cali­for­ni­a’s budget.

This should be a no-brainer. But noth­ing about the way Cali­for­nia has handled this consti­tu­tional crisis has been easy. Instead of accept­ing the truth of what the federal courts have told them—that there is indis­put­able evid­ence that state inmates are being housed in uncon­sti­tu­tional condi­tion­s—state lawmakers instead have blamed judges for deliv­er­ing the bad news. “There is bipar­tisan frus­tra­tion with the federal judges that (sic) are impos­ing this order and being irre­spons­ible in forcing this state to have to spend” millions to address this crisis,’ Assembly­man Al Murat­su­chi told The Los Angeles Times last week.

And now there is bipar­tisan discord over the Governor’s plan to expand the state’s prison industry. "Tempor­ar­ily expand­ing Cali­for­ni­a’s prison capa­city is neither sustain­able nor fisc­ally respons­ible,” Senate Pres­id­ent Pro Tem Darrell Stein­berg, a proponent of “Plan B,” told the governor last week in a letter obtained by The Los Angeles Times. He’s exactly right. If state lawmakers aren’t going to release those inmates the way the federal courts have ordered—the dead­line now is Decem­ber 31—the least those politi­cians can do is use this crisis as an oppor­tun­ity to bring mean­ing­ful reform to this grim area of public policy. It’s time for a new idea. And time to stop trying to ease the costs of prison by spend­ing more on pris­ons.