Decarcerating America Read online

  26. MARY T. PHILLIPS, CRIMINAL JUSTICE AGENCY, A DECADE OF BAIL RESEARCH IN NEW YORK CITY (2012).

  27. CJA’s recommendation process changed in 2003, so only data from then until 2014, the most recent year available, are reported here. Mary T. Phillips, Russell F. Ferri, and Raymond P. Caliguire, Criminal Justice Agency, Annual Report 2014 (2016).

  28. People interviewed by CJA staff generally fall into three recommendation categories depending on their risk score: recommended for ROR (low risk); moderate risk for ROR; not recommended for ROR (high risk). Mary T. Phillips and Raymond P. Caliguire, Criminal Justice Agency, Annual Report 2004 (2006); Phillips, Ferri, and Caliguire, 2016.

  29. The combined incarceration rate is the rate at which people are in the custody of the city’s jail complex, combined with the rate at which people are serving sentences imposed by city judges in the custody of the state DOCCS.

  30. NEW YORK CITY, DEPARTMENT OF PROBATION, DO MORE GOOD: A PROGRESS REPORT FROM THE NYC DEPARTMENT OF PROBATION (2014).

  31. Id.

  32. State of New York, Office of Probation and Correctional Alternatives, State Probation Plan Data Summary (2013).

  33. Joe Domanick, The New York “Miracle,” THE CRIME REPORT, Oct. 16, 2011.

  34. P.M. GUERINO ET AL., U.S. DEP’T OF JUSTICE, PRISONERS IN 2010 (2011), available at http://www.bjs.gov/content/pub/pdf/p10.pdf.

  35. PEW CENTER ON THE STATES, WHEN OFFENDERS BREAK THE RULES: SMART RESPONSES TO PAROLE AND PROBATION VIOLATIONS 3 (Nov. 2007), available at http://www.pewtrusts.org/~/media/legacy/uploadedfiles/pcs_assets/2007/when20offenders20break20the20rulespdf.pdf.

  36. Harvard Kennedy School Program in Criminal Justice, Executive Session on Community Corrections, Consensus Paper (forthcoming).

  37. COMM. ON CAUSES AND CONSEQUENCES OF HIGH RATES OF INCARCERATION, NAT’L RESEARCH COUNCIL OF THE NAT’L ACADEMIES, THE GROWTH OF INCARCERATION IN THE UNITED STATES: EXPLORING CAUSES AND CONSEQUENCES (2014).

  3

  Lessons from California

  MICHAEL ROMANO

  Once California was the national vanguard of tough-on-crime politics; today it is one of the states leading the trend in the opposite direction. Over the past decade, and during the past five years in particular, no other state has grappled as vigorously with its prison policies or enacted and implemented more reforms to reduce its prison and jail populations than the Golden State. In fact, to the extent that the total national prison population is on the decline, it is largely attributable to prison downsizing in California. This is partially due to California being among the most populous states in the country and partially due to the scale of reform enacted there. Between 2007 and 2015, California reduced its prison population by more than 44,000 prisoners (over 20 percent). Over the same period of time, the combined population of all other state prisons and the federal system decreased by about 30,000 prisoners (less than 2 percent).1

  Much of California’s prison downsizing came at the behest of the United States Supreme Court in response to reprehensible conditions within the state prison system. In 2011 the Court ruled in Brown v. Plata that California’s prisons were unconstitutionally overcrowded and ordered the state to limit the number of inmates in its prison system to approximately 113,000 inmates (or 137.5 percent of the prison system’s design capacity).2 At the time, that meant a reduction of approximately 35,000 inmates. The state legislature responded with the enactment of the Public Safety Realignment Act (AB 109), providing that most new nonviolent offenders be incarcerated in county jails rather than the state’s prisons, thus greatly reducing the strain on the state prison system.

  The following year, California voters overwhelmingly enacted a ballot measure (Proposition 36) to reform the harshest aspects of the state’s infamous three-strikes law—which at the time was the most punitive noncapital sentencing law in the country and accounted for over a quarter of all prisoners in California. Two years later, in 2014, California voters approved another ballot measure (Proposition 47) reducing sentences for drug possession, shoplifting, and several other low-level street crimes.3 The popular movement for sentencing reform in California is so strong that Governor Jerry Brown, who did not publicly support earlier reform measures, sponsored his own successful statewide ballot measure in 2016 to keep the state’s prison population in check, the Public Safety Rehabilitation Act of 2016 (Proposition 57), which increases early parole and in-prison credit-earning opportunities.4

  To the extent that California’s sentencing reforms can be evaluated in terms of the crime rate since the enactment of these policy changes, the results are encouraging. Both violent and property crime rates have decreased since 2010, the year before Plata and the first sentencing reform was enacted. Between 2010 and 2015, the rate of violent crime per 100,000 residents in California fell by 2.1 percent and the rate of property crime fell by 0.4 percent.5 In total, the state’s crime rate has dropped to levels not seen since 1967.

  For obvious reasons, special attention has been paid to the recidivism rates of prisoners released early under California’s sentencing reforms. These results are encouraging as well, with those recidivism rates five to ten times better than the average recidivism rate of other Californian prisoners who were not released early.6 There are several reasons for the success rate of prisoners released early under California’s reforms, including the fact that the reforms targeted older nonviolent prisoners with low likelihood of future recidivism, a public safety screen by courts that could veto the release of dangerous prisoners, and increased reentry support services targeting this group of released inmates.7

  While important work remains to be done in California—state prisons remain overcrowded, too many people who pose no risk to public safety remain imprisoned, the mentally ill still bear a disproportionate burden of harsh sentencing policies, and recent state data project an increase in the population of mentally ill prisoners over the next few years—the trend is undeniably positive. This chapter describes some of the key reasons California has been successful in downsizing its prisons, presenting the results as a model for other jurisdictions to follow and as encouragement to policy makers in California to continue its unfinished business.

  California’s prison reforms did not come easy. Almost all of California’s prison downsizing reforms came in the face of fierce political opposition from state lawmakers, most of whom identify as progressive Democrats, including Governor Jerry Brown.

  Most of these officials came to office in the wake of the Willie Horton advertisements in the 1988 presidential election and Bill Clinton’s 1994 crime bill. It’s hard to overstate the legacy of Horton on criminal justice policy, especially among Democrats. In June 1986, while serving a sentence of life without parole for murder in Massachusetts, Horton was permitted to spend a weekend in the community as part of a furlough program designed to rehabilitate inmates. He didn’t report back to prison, as instructed. Instead, he traveled to Maryland and, among other things, raped a woman and assaulted her boyfriend. The story came to prominence two years later when Massachusetts governor Michael Dukakis ran for president against George H.W. Bush, whose campaign publicized the Horton case relentlessly. Negative publicity about Horton is widely considered the single most important factor undermining Dukakis’s substantial lead over Bush at the time. The effect was amplified in California, where two years earlier three justices of the state supreme court, including the chief justice, were ousted by voters due to their opposition to the death penalty. State voters then enacted the California’s three-strikes law (Proposition 184) in 1994, followed by a cascade of subsequent voter initiatives restricting parole and increasing punishments for firearm offenses, juvenile offenders, gang members, and sex offenders. Predictably, California’s prison population swelled to over twice the system’s designed capacity.

  The first step toward prison downsizing in California came in the form of class action lawsuits alleging that the state’s prisons had become so crowded that mentally and physically
ill inmates were being deprived of basic psychiatric and medical care.8 In 2011, after more than a decade of litigation in lower courts, the U.S. Supreme Court agreed that California’s prison crowding conditions were so bad that they violated basic human dignity and the Eighth Amendment’s prohibition of cruel and unusual punishments. In Plata, the Court affirmed a lower court ruling that the only legitimate remedy was reducing the number of prisoners, and it ordered the state to reduce its inmate population dramatically. A special three-judge panel was empowered to monitor the prison population reduction and enforce a long-term “durable” solution to California’s prison overcrowding crisis.

  Grudgingly, the California legislature complied with Plata, enacting legislation “realigning” the state’s justice system by imprisoning people convicted of nonviolent crimes in county jails rather than state prisons. The move was partially a political sleight of hand. Officials insisted that no prisoners were being released early—but in reality most of the state’s jails themselves were already overcrowded and under their own court-ordered population caps, so policy makers must have known that the jails would be forced to release inmates early when they received the influx of new inmates who were no longer sentenced to state prison. (Indeed, in 2014, the state jails reported releasing more than fifty thousand inmates early due to overcrowding.) In any event, the state prison population dropped precipitously as a result of the Plata ruling and subsequent realignment legislation—from more than 200,000 inmates when the Plata case was filed to 129,000 by January 2017.9

  The second major reform in California ameliorated the state’s three-strikes law. Because that law was enacted by ballot measure, amendments or reforms to the legislation also had to be enacted by popular vote (or by a politically unobtainable two-thirds vote of the legislature). The Three Strikes Reform Act of 2012 (Proposition 36) impacted fewer total prisoners compared to Plata and realignment, but it had far-reaching political impact considering the infamy of California’s three-strikes law and the approach to releasing prisoners under Proposition 36.10 Prior to the reform campaign in 2012, California’s three-strikes law was the harshest and most widely used noncapital sentencing scheme in the United States. More than ten thousand prisoners had been sentenced to life under the law since its enactment in 1994, most of whom were convicted of a nonviolent third-strike offense. Prisoners were sentenced to life for crimes as minor as shoplifting a pair of tube socks, simple possession of $5 worth of cocaine, or attempting to steal a dollar in loose change from a parked car.11 In addition, and not unpredictably, a disproportionate number of the inmates sentenced to life under California’s three-strikes law for minor crimes were mentally ill.12

  Figure 3.1: Three-Strikes Sentences for Violent and Nonviolent Crimes

  It’s also no surprise that California’s three-strikes law exacerbated the disproportionate impact of sentencing laws on people of color, especially African Americans.

  Figure 3.2: Race and Three-Strikes Sentencing

  Proposition 36 eliminated life sentences for nonserious, nonviolent crimes and was enacted by 70 percent of the California electorate.13 The success of California’s three-strikes reform contributed to the national conversation about prison downsizing and was one of the first specific pieces of criminal justice reform legislation that was endorsed by conservative leaders, including conservative activist Grover Norquist, and law enforcement officials, including Bill Bratton, commissioner of the New York City Police Department and former Police Chief in Los Angeles.14

  Perhaps the most groundbreaking aspect of Proposition 36 is that it was one of the first prison downsizing laws to permit the release of prisoners who were behind bars at the time of its enactment. Typically, legislation that reduces criminal sentences (including California’s realignment measure) operate prospectively from the date the reform was enacted—changing the law for future cases only, rather than also reaching back to adjust sentences for prisoners who committed their crimes prior to enactment of the reform legislation. As a result of Proposition 36, more than 2,200 prisoners sentenced to life for minor crimes have been released from custody and returned to their communities. As discussed in more detail below, the recidivism rate of those released under the reform has been many times better than that of the average inmate released from prison in California.

  The success of Proposition 36 begat California’s third, and perhaps most far-reaching, prison downsizing reform: Proposition 47, the Safe Neighborhoods and Schools Act of 2014. The measure was so titled because it created a mechanism to redirect the financial savings associated with the reform (from reduced prison and jail costs) into a state fund to support K-12 education, mental health treatment, and services to support crime victims. It targeted an idiosyncrasy in California sentencing law that permits prosecutors to elevate even the most minor crimes (e.g., shoplifting and simple possession of a fraction of a gram of drugs) from misdemeanors to felonies. Under Proposition 47, six of the most common so-called “wobbler” crimes were designated as mandatory misdemeanors. This impacted tens of thousands of cases in California and resulted in the early release of more than thirteen thousand inmates in state prisons and jails, causing the state’s prison population finally to fall below the population threshold ordered by the Supreme Court in Plata. As with those prisoners released under Proposition 36, the state prisoners freed early under Proposition 47 have performed remarkably well as a group, with a recidivism rate far better than anyone could have anticipated or hoped for.15

  As of spring 2017, Californians are waiting for a third successful sentencing reform ballot measure to go into effect: Proposition 57, the Public Safety Rehabilitation Act of 2016, which was enacted by voters in November 2016. Proposition 57 provides an opportunity for early parole to some nonviolent offenders and permits the state Department of Corrections to reset rules that reduce prison sentences for good behavior and participation in prison programming. Remarkably, Proposition 57 was authored and sponsored by Governor Jerry Brown and his administration. Although Governor Brown is a Democrat and widely considered one of the county’s most progressive leaders, he vociferously fought the overcrowding-reduction order in Plata and refused to endorse Propositions 36 or 47. It’s also remarkable that a sitting governor would sidestep the legislature, both houses of which are controlled by fellow Democrats, and take an issue directly to voters. It seems he did so because California voters appear more supportive of prison reform than their elected representatives are.

  Proposition 57 gives prison officials flexibility to adjust the sentences of current inmates and provide some control over the state’s overall prison population. Undoubtedly, the governor hopes the measure will satisfy the three-judge panel overseeing the California’s prison system that the state finally has a durable solution to the state’s prison crowding crisis and bring to a close the class action litigation that spurred the state’s prison downsizing movement in the first place.

  In some ways, the success of prisoners released under the California reforms over the past five years may be the most important—and hardest-to-explain—lesson to be drawn from California’s reforms. Seemingly, the odds would be especially great against the prisoners released from three-strikes sentences under Proposition 36: they were being released from indeterminate life sentences, and inmates serving life sentences in California were generally barred from prison programming and reentry services.16 Further, by their very status as three-strikes inmates they were proven recidivists. And as the Supreme Court noted in Ewing v. California, the justification of the three-strikes scheme was the incapacitation of inevitable recidivists: “the class of offenders who pose the greatest threat to public safety: career criminals.”17

  Therefore, it comes as some surprise that the recidivism rate of those inmates sentenced under the three-strikes law and released under the reforms enacted in 2012 is many times better than that of the average inmate leaving prison in California. According to the California Department of Corrections, the recidivism rate of prisoner
s released under Proposition 36 is 9 percent over the three years following enactment of the reform. The recidivism rate of all other prisoners released in California over the same period of time is 53 percent.18 Even the fiercest opponents of Proposition 36, including prosecutors, have publicly acknowledged that the reform is “working well.”19

  The recidivism rate of prisoners released under Proposition 47—California’s 2014 follow-up to three-strikes reform, which retroactively reduced the sentences of even more prisoners—is also very encouraging. Although there has been less time to evaluate the recidivism rate of prisoners released under Proposition 47, one year after its enactment the recidivism rate of more than four thousand state prisoners released under the reform was less than 10 percent.20 (By comparison, the one-year recidivism rate of all other California state prisoners was 42 percent.)

  Figure 3.3: Recidivism Rates of Prisoners Released Under Propositions 36 and 47

  There are some theories about why prisoners released under California’s sentencing reforms are doing so well. First, released three-strikes inmates are generally older than the typical parolee, and one would rightly anticipate that their recidivism rate would be lower. However, prisoners released under Proposition 36 outperform other prisoner cohorts by such a large degree that something else must be at work to explain the dramatically low recidivism rates.

  Second, neither Proposition 36 nor Proposition 47 resulted in the automatic release of prisoners. In order to win a reduced sentence under either reform, each prisoner had to appear before a trial court judge, who had discretion to deny resentencing if the prisoner continued to pose an “unreasonable risk of danger to public safety.”21 At first blush, this public safety screen might explain a lot of the recidivism data. On closer review, however, the judges’ review and discretion to deny resentencing had little impact: more than 95 percent of inmates eligible for shorter sentences under Propositions 36 and 47 received them.