Prison Realignment: Now What?

Nearly a thousand members of the Los Angeles Area Organized Retail Crimes Association gathered at a downtown convention center earlier this year for an election-year pep talk by District Attorney Steve Cooley - who did not disappoint.

Cooley began by announcing that crime in the county had hit a 60-year low. But he quickly waved off applause from the crowd of crime-loss-prevention managers. "The bad news is coming," he said. "We are going to experience the greatest spike in crime in our lifetime. ... Why? AB 109 - so-called realignment. This is a predictable public safety disaster."

AB 109 - shorthand for the Public Safety Realignment Act of 2011 - is a 489-page omnibus bill enacted by the state Legislature last October. It aims to reduce the population in California's overcrowded state prisons by shifting responsibility for nonviolent felons to the counties - setting off the biggest change in corrections philosophy since the advent of determinate sentencing in 1977.

"Get ready," Cooley warned his audience, "for this influx of criminals who are not under any effective control mechanism."

That was in February. A month later, Cooley repeated his predictions to a gathering of the county's Professional Peace Officers Association. He lamented what he described as California's abandonment of its core mission to "incarcerate those people who need to be incarcerated" and protect the public. "I am telling you, police officers are going to be hurt, some killed," he said. "There will be more officer-involved shootings, more confrontations with people who should be in prison but are out."

Cooley joined many critics in assessing the first six months of prison realignment, which hands off to the 58 counties costly obligations that include housing inmates, monitoring those on probation, collecting restitution, and conducting parole-revocation proceedings.

In fact, the Legislature intended AB 109 to fundamentally shift corrections policy, from one of mass incarceration to an approach of rehabilitation. Counties are now expected to implement alternatives to jail time and to make evidence-based determinations for bail, sentencing, and probation terms.

The shift was prompted in part by the hope that more effective rehabilitation efforts might cut into the California prison system's 70 percent recidivism rate - among the highest in the nation. It was driven by other practical considerations as well: Despite a 30-year building boom that produced a total of 33 prisons for adults, California simply can't keep up with the demand for prison "beds."

In 2006 the state's prison population swelled to an all-time high of 173,000 individuals warehoused in facilities designed for less than half that number. Prisoners were sleeping in gyms, in dayrooms, and in any other available space, often in bunks stacked three high. And maintaining that population cost plenty: In the course of a decade, California's corrections budget soared from $5 billion to more than $9 billion in 2011. What had consumed 3 percent of the state's general fund in 1979 ate up 11 percent of the fund 30 years later.

The immediate cause of the policy shift, however, was a federal court order. Three years ago a specially appointed panel of two district court judges and a Ninth U.S. Circuit Court of Appeals judge declared that medical services in the state's overwhelmed prisons were so inadequate as to violate the constitutional prohibition against cruel and unusual punishment. The judges found that a significant number of inmates died unnecessarily because medical and mental health care was so inadequate, and that the conditions that led to the early deaths were produced by overcrowding. (Plata v. Schwarzenegger (medical care) (N.D. Cal.); Coleman v. Schwarzenegger (mental health care) (E.D. Cal.); both reported at 2009 WL 2430820.)

In August 2009 the federal panel gave California 45 days to devise a two-year plan that would cut the number of prison inmates by 40,000 and reduce overcrowding to a mere 137.5 percent of the capacity the state's facilities were designed to handle. In May 2011 the U.S. Supreme Court affirmed that ruling in a 5-4 order, endorsing a deadline of June 2013 to accomplish the reductions. (Plata v. Brown, 131 Sup. Ct. 1910 (2011).)

Five months later, California lawmakers passed AB 109. It designated 500 nonviolent felonies in the state criminal code as punishable by terms in county jail rather than in state prisons. On October 1, 2011, county jails began receiving all newly sentenced felons - with the exception of registered sex offenders and others convicted of serious crimes. To help defray the local governments' additional costs, the Legislature reallocated an expected $19 billion to counties from the state sales tax and the vehicle license fee for 2012 to 2015.

The California Department of Corrections and Rehabilitation quickly declared AB 109 a success. Last spring it released a report titled The Future of California Corrections, which predicted annual savings to California of $1.5 billion for maintaining the smaller inmate population and another $4.1 billion from bond authority that would no longer be needed for new prison construction. By 2022, the CDCR predicted, California would save $30 billion in prison costs.

Already, reported Matthew Cate, secretary of the state corrections department, inmate "churning" - the rapid reentry of prisoners into the system for parole violations - has effectively stopped. Prior to realignment, according to the CDCR report, each month more than 10,000 convicts completed their sentences and were released from state prison, only to be replaced by 10,000 other convicts. But after six months of realignment, the state's adult prison population had dropped by 22,000.

According to Cate, overcrowding has dropped from 200 percent of capacity in 2006 to less than 150 percent in June 2012. As a result, he says, prison inmates no longer must sleep stacked like cordwood in every available space.

"Taking a view from 10,000 feet up, the Legislature and the governor consider realignment a stroke of brilliance," says Yolo County's Presiding Judge David Rosenberg, a member of the state Judicial Council. "It will solve a huge problem for the state: overcrowding. But it will have a huge, as-yet-unknown impact locally."

County governments face unprecedented challenges - chief among them the cost of housing as many as 30,000 inmates who previously would have been kept in state prisons. In 2007 the state provided authority for the counties to issue $1.2 billion in lease-revenue bonds for jail construction, adding $500 million in bond funding last year.

So far in the first year of realignment, more than half of California's counties are building or expanding their jail facilities. Yet none has changed the practices that got the state into so much trouble to begin with. Prison building, essentially, has gone local.

In an interview, Cooley likens the pressure on local jailers to find bed space to putting "early release programs on steroids." In counties that lack extra jail capacity, alternatives to incarceration, or interest in pursuing either option, realignment could mean a flood of early prisoner releases - the nightmare scenario Cooley described.

Looking at the same pressures, though, the many supporters of prison realignment see a unique opportunity for counties to change California's predominant model of incarceration. One year in, there is evidence to bolster both arguments.

The CDCR's Cate recognizes the practical and philosophical problems that come with shifting so much responsibility to local governments. "It is not a level playing field" for all counties, he says. "Some counties really don't have the kind of infrastructure they would need to purchase rehabilitative services right away. And I think it's also true that in some places they've got to get the entire county behind a certain approach. Politically, that's very difficult."

Complicating the realignment process is the present funding formula, which rewards counties that had sent the most felons to state prison. Of the first year's allocation, for instance, the 25 biggest counties got $327 million - about 92 percent of the state's total disbursement.

Under the formula developed by the California State Association of Counties (CSAC), 60 percent of what a county receives is based on its historical daily average of felons sentenced to state prison for nonviolent offenses. Just 10 percent is based on a county's success in providing support services to former inmates released on probation.

Elizabeth Espinosa, the legislative representative for the CSAC in Sacramento, says the formula reflects the anticipated workload that will rebound to the high-volume counties under realignment. Those with very high case-loads of nonviolent felons may have ignored alternatives to prison in the past, she says, "so they have nothing they can do for these people in the short run. They need to be given funding up front so they can begin to develop services and alternatives that some other counties have already invested in."

The formula has favored Fresno, Kern, Kings, San Bernardino, Santa Clara, Shasta, and Tulare counties - all of whose courts historically sentence high percentages of nonviolent felons to state prison. Meanwhile, those that provide more rehabilitation services and alternatives to state prison - including Alameda, Contra Costa, Sacramento, San Diego, and San Francisco counties - receive proportionately less funding. Yet of the state's 25 most populous counties, only Alameda wasn't planning a jail expansion. (A modified funding formula for the second year of prison realignment - developed by a CSAC panel of administrators representing urban, suburban, and rural counties - is pending before the Legislature.)

Espinosa warns counties about the consequences of using state allocations to build more jails. It's not so much the construction costs that drain county coffers, she points out. It's the long-term cost of operating and maintaining the jails - and that, she says, "is still a very expensive proposition."

Still, many of California's counties have failed to develop alternatives to lengthy incarceration. In March the ACLU of California released Public Safety Realignment: California at a Crossroads, a report on county responses in the first five months of the program. It documents a dramatic increase in spending state funds to build or reopen jail beds, and a much smaller percentage designated for rehabilitating inmates. At least 32 of the 58 counties planned to expand jail capacity, the study found.

"Realignment is going to work if counties move away from the historical focus on incarceration and recognize there are cheaper, more effective ways to keep the public safe," says Allen Hopper, director of the Criminal Justice and Drug Policy Project for the ACLU of Northern California. "You can't incarcerate your way out of this mess."

While Cooley worries about lack of jail space, Hopper fears that realignment will be undermined by the release of unsupervised felons into communities that lack rehabilitative services, drug-treatment programs, and support for obtaining housing and jobs.

"Simply imprisoning people without rehabilitative programs just incapacitates individuals for that period," Hopper says. California's sky-high recidivism rate "demonstrates the failure of that approach," he warns.

Hopper says that counties with overcrowded jails need to rethink which offenders they lock up, and better manage their inmate populations. The ACLU study found, for example, that 88 percent of the inmates filling Fresno's jails were awaiting trial - either too poor to post bail or facing charges too serious to permit it. Rather than reduce the inmate count through supervised, pretrial release or electronic monitoring, the ACLU reports, sheriff's deputies are left to decide who gets out when jail beds are scarce.

"The same counties that get a disproportionate share of state money spend a disproportionate share to expand their jails," Hopper says. "I agree that counties needing the most help establishing alternatives ought to get money to do that. But the money should come with strings attached. The counties can't just keep doing the same thing they've been doing - build, build, build."

During his visits around the state, the correction department's Cate believes he's already seen a shift in attitudes. In some counties, he says, "we're seeing collaboration between the probation chief, the sheriff, the police chief, the district attorney, the public defender, the mental health director, and the judges. This is the first time they've tried to establish a really comprehensive approach to local public safety."

Yet even with the rapid drop in the state's prison population, the CDCR will exceed the court-mandated target population for 2013 by 3,000 inmates. In June state lawyers filed papers informing the three-judge panel they will petition early next year to raise the target from 137.5 percent of prison system capacity to 145 percent.

Even more troubling, realignment has generated a series of collateral problems that now confront county sheriffs, prosecutors, defense lawyers, and trial judges. For example, counties - rather that the state - must cover the growing cost of providing adequate medical care for inmates. In fact, officials in Fresno County this year delayed plans to reopen some 400 jail beds partly because the realignment money wouldn't cover health care costs for a larger number of inmates.

In addition, local authorities for the first time are responsible for collecting crime victim restitution payments. "That's a major problem," says Kelly Keenan, chief assistant district attorney in Fresno County. The CDCR tracks restitution orders for inmates in state prisons, collecting even after they are released on parole. But it's more difficult to track someone who serves a three-year jail sentence and then leaves with no supervision or probation program.

"We're struggling with it," Keenan says. For the present, he says, crime victims will have to go after restitution themselves, in civil court.

Realignment has also added to the burden on public defender's offices, because they now must represent clients in revocation-of-parole hearings, says San Francisco Public Defender Jeff Adachi. And the private criminal defense bar is still playing catch-up on how to advise clients about entering a plea under the new rules, which complicate sentencing.

Finally, trial judges must choose from an array of sentencing options, including split sentences. A judge may divide a term between jail, probation, treatment, or other supervision, or issue a jail-only term with no supervision upon release. But many judges are reluctant to apply split sentences, opting instead for the certainty of lengthy jail terms - sometimes spanning a decade or more - that county facilities are ill equipped to handle.

For instance, in April Sacramento Superior Court Judge Lawrence G. Brown sentenced two men to 13 years each in county jail for transporting 35 kilograms of cocaine, saying he no longer had the option to send them to state prison. Adds Yolo County's Judge Rosenberg, "I have sent people to county jail for 10 years. But jails were not built for people staying long terms - that's the elephant in the room nobody is talking about."

Rosenberg says long-term felons are now being housed with people who are serving time for a misdemeanor or awaiting trial. "How will that change the dynamic of jail life?" he asks.

And there are further burdens to come. Next July trial judges will take on the role of quasi-parole boards, overseeing thousands of parole-revocation hearings annually. The numbers could be even higher - in 2009 California recorded 84,000 parole violations.

Fresno County Superior Court Judge W. Kent Hamlin says that for judges, "the frustration is not prison realignment, but that the Legislature passed it [last September] effective tomorrow. It's not that much to ask to give us a couple of months to adjust. No guidance, no training, just a law effective the next day. That is not the way to do business."

The ACLU's Hopper says he supports prison realignment, but argues it doesn't go far enough. He contends the state's inability to meet targeted population cuts shows it's time to change California's determinate sentencing law. "The governor ought to be proposing sentencing reform," he says. "Not just nibbling around the edges ... but taking a hard look at sentencing for drug crimes and enhancements based on prior convictions for drug crimes."

Cooley, on the other hand, thinks realignment should be dumped in favor of more incremental change. He suggests reducing state prison sentences across the board, commuting some sentences, and not sending inmates back to prison for parole violations unless they involve a new crime. For third-strike cases that don't involve serious offenses, he would like to see the mandatory 25-years-to-life sentence eliminated. Taken together, he says such measured steps would be preferable to foisting the state's problem onto the counties.

San Francisco's Adachi says realignment can work if the counties that traditionally rely on incarceration start taking the alternatives seriously. San Francisco County has a history of seeking these out, establishing a so-called reentry council in 2004 that brought together government officials, community groups, and churches to focus on services needed by former inmates. "It's far more expensive to have a jail bed as opposed to a residential treatment program," Adachi says. "But the hardest thing is to shift the culture away from 'Lock 'em up.' "

Last year Adachi met with public defenders and court and sheriff's officials from Fresno County to talk about different approaches. In late April, Fresno County supervisors earmarked nearly $7 million to fund a rehabilitation program for newly released jail inmates. "They are where we were eight years ago," Adachi says. "The cities and counties are hungry for ideas. We just need to work together."

Pamela A. MacLean is a contributing writer at California Lawyer.

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