Overcrowding in a California prison. Courtesy Rosen Bien Galvan & Grunfeld LLP
On February 22, 1998, Pete Gallagher arrived at Building 13 at Solano State Prison in Vacaville, California. It was Gallagher’s thirteenth year behind bars, and he’d already done time in Chino, Folsom, San Quentin and, most recently, the Richard J. Donovan Correctional Facility outside San Diego. Building 13 was large, open, fluorescent-lit and crammed with double bunks. Inmates were everywhere. It reminded Gallagher of a warehouse or a military barracks. He took one look, then found a corrections officer. “I’m not going to live like this,” he told him. “Take me to the hole.”
But for the next fourteen years, Gallagher, who is on parole and did not want his real name used, did live like that, and he watched as conditions deteriorated further: triple bunks replaced doubles, and new bodies filled the new beds. No toilets or sinks were added. The law library became too cramped to use, and visiting hours were chaos. Men died from the miserable healthcare: one from an abscessed tooth, another from hepatitis C. “If you weren’t ambulatory, you didn’t go to the doctor,” Gallagher says.
By 2006, the California prison system had reached a crisis point: built to house 80,000 inmates, it held more than twice that number. “It was like the USSR,” says Jim Mayer, executive director of California Forward, a nonpartisan government reform group. “It was going to implode on itself.” A few years later, a three-judge panel handed down a dramatic ruling in response to two federal class-action lawsuits filed by inmates: the first, from 1990, claimed that mentally ill prisoners did not have access to minimal care; the second, filed eleven years later, described similar conditions for regular medical treatment. The panel found that inmates had been subject to cruel and unusual punishment, in violation of the Eighth Amendment. The judges ordered California to shrink its prison population by more than 30,000 inmates. The state appealed, but on May 23, 2011, the US Supreme Court upheld the order in a landmark ruling, Brown v. Plata. By June 27, 2013, the Court ruled, California’s prisons would have to look very different.
So began “realignment,” an unprecedented overhaul of California’s thirty-three prisons, described as the largest criminal justice experiment ever conducted in America. Tens of thousands of low-level offenders would be kept in their hometowns instead of being shipped to state prisons. Law enforcement would seek smarter, cheaper justice models. That, at least, was the theory. And while the Court’s deadline has since been pushed from June to December, the question remains: Is California doing enough to reverse its prison crisis?
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Five months before the Plata ruling, in December 2010, California Governor-elect Jerry Brown summoned law enforcement officials to a conference room in Sacramento. It was his last month as attorney general, and for the second time in his career—he was also governor from 1975 to 1983—he was preparing to be inaugurated. As police and probation chiefs, district attorneys and others crowded around a conference table, Brown laid out the state’s most urgent criminal justice problems: a $26 billion deficit and a looming Supreme Court decision that could have vast implications. Then he introduced the broad outlines of a plan that would transform the state’s prison system.
It was ironic that Brown was delivering this policy initiative. During his earlier terms as governor, he had overseen a very different kind of transformation of the prison system. Soon after his election in 1974 and into the next three decades, punishment flourished: the state passed a slew of tough sentencing measures, including, in 1994, the notorious three-strikes law (recently softened by a ballot measure). Rehabilitation programs were gutted. The prison guard union—and its political power—exploded, the “war on drugs” was declared, and as Berkeley law professor Jonathan Simon has pointed out, a new generation of parole officers with little interest in rehabilitation sent waves of offenders back to prison for so-called technical violations. Between 1984 and 2006, California built twenty-one new prisons and, in roughly the same period, increased its prison population from 34,000 to 173,000 prisoners. The racial composition of the inmate population shifted from largely white to largely black, and the number of people incarcerated for drug sales and possession charges tripled. Corrections dollars from the state’s general fund quadrupled. One study found that within three years, 66 percent of parolees had returned to prison. Even Brown, whose office did not respond to requests for an interview, called the system a “scandal.”
When Arnold Schwarzenegger was elected governor in 2003, he promised systemic changes. A panel of experts developed recommendations, beginning with a reduction in overcrowding, as well as a variety of rehabilitative programs. “Rehabilitation” was even added to the state corrections agency’s name.
But as Stanford University law professor Joan Petersilia has pointed out, Schwarzenegger largely failed. He signed a bill that funded one of the largest prison and jail construction programs in state history. The cost of housing inmates rose, as did the prison population. Meanwhile, investments that might eventually reduce incarceration—toward things like education or substance abuse treatment—remained pitifully low: just $2,000 of every $49,500 spent annually to house a single inmate funded rehabilitation.
On February 14, 2006, a district court judge appointed a federal receiver to take over the delivery of inmate healthcare. Behind the ruling was a startlingly bleak portrait of the prison system—one filled with feckless administrators, negligent doctors, and inmates who were dying at the alarming rate of one every six to seven days. One doctor refused to see a prisoner who was experiencing abdominal and chest pains. The inmate died two weeks later, and the physician, who was the subject of sixty-two grievances, later said that most prisoners with medical complaints were trying to take advantage of the system. “By all accounts, the California prison medical system is broken beyond repair,” the judge wrote. “The harm already done in this case to California’s prison inmate population could not be more grave, and the threat of future injury and death is virtually guaranteed in the absence of drastic action.”
A few years later, and just three months after Brown’s December 2010 meeting, his plan for such drastic action would become law. It acknowledged decades of failed prison policy, and though it didn’t roll back some of the state’s toughest sentencing laws, as prison reformers had advocated, it offered a vision that was in stark contrast to the tough-on-crime years. “The law set out a statement of findings and legislative intent that read as though, literally, the ACLU might have written them,” says Allen Hopper, a lawyer with the American Civil Liberties Union of Northern California.
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By the fall of 2011, Sacramento Sheriff Scott Jones was frustrated. He wasn’t necessarily opposed to Brown’s ideas, but everything had happened too fast. He feared that prisoners would be released with little supervision, and told a reporter, “You add to that the statistical certainty of our recidivism rate, I think you can fairly well…predict that the crime rate in Sacramento County is going to go up.” A little farther south, the Los Angeles district attorney, Steve Cooley, was less circumspect. “Like a lot of revolutions,” he told a radio reporter, “there might be a lot of blood in the streets.”
For all the fearmongering, realignment has proven to be a relatively peaceful experiment so far. There was a slight uptick in violent and property crimes in the first half of 2012 in most of California’s largest cities, according to the nonpartisan Center on Juvenile and Criminal Justice, yet an analysis earlier this year by the center found no connection between those numbers and realignment. Many counties that once sent felons to state prison en masse have dramatically scaled back those numbers. All told, the state’s prison population has shrunk by more than 25,000 inmates since 2011.
Like deinstitutionalization, the decades-long process that returned mentally ill people from psychiatric hospitals to communities, realignment was designed to keep thousands of thieves, addicts, and other “nonsexual, nonserious and nonviolent” inmates—as the state calls them—in their home counties. Instead of sending offenders to state prison, local law enforcement would figure out what to do with them: Should they be monitored with an ankle bracelet? Should they be in drug or alcohol treatment? Parolees would no longer be sent back to prison for technical violations, and judges and prosecutors would have more discretion in sentencing and charging low-level criminals.
Realignment called for “evidence-based” corrections practices that cost less than prison, but there were no mandates to prove such practices were working. Counties were given wide latitude to decide how to implement the law. “The counties know how to run their business” is how Terri McDonald, undersecretary of the Department of Corrections and Rehabilitation, explains it.
In the months after the law passed, researchers at the ACLU of Northern California began reviewing every realignment plan from every county. While many of these counties professed a commitment to the principles laid out in the law, their plans contradicted its spirit: of the twenty-five counties that received the most state realignment funding, twenty-four planned to expand their jails or build new ones. “At its worst,” the ACLU warned a few months later, “realignment will reveal itself to be nothing more than a shell game, simply moving bodies out of California’s dangerously and unconstitutionally overcrowded prisons to local jail facilities.”
Was California’s county-empowering reform little more than the old mass incarceration model writ small?
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One day last December, 45-year-old Bart Cantrell got up around 4 am and marched down a fluorescent-lit hallway, through the kitchen, and into a small room where a little black machine and a cylindrical magnet sat on a metal shelf. As he did every day, he swiped the magnet across a black monitor strapped to his ankle and watched for a green light. Seconds later, Cantrell’s blood-alcohol level was measured and the authorities notified.
Cantrell had been an oilfield worker, truck driver and commercial fisherman, and had once lived in a half-million-dollar home. By the time I met him, he lived in a small room in a former motel on the dusty edges of Bakersfield, an oil and agricultural city at the southern tip of the San Joaquin Valley. The facility had reopened as the New Life Recovery and Training Center last year. Cantrell was there because he had been using methamphetamine and other drugs since he was 14. After decades of cycling through county jail and state prison, he was done. His ex-wife was dead—killed by an overdose. He’d lost his house. “I’m to the point where I’m sick and tired of being sick and tired,” he told me.
Kern County, where Cantrell lived, is mostly rural and was once known for its lock-’em-up philosophy. The county jail, which holds about 2,700 people, is one of eighteen in the state now operating under a court-ordered population cap. Before realignment, it had a recidivism rate of 70 percent, and about three-quarters of the people sent to state prison were low-level felons. Kern County Sheriff Chief Deputy Francis Moore explains the old thinking this way: “We’re the cops—we put them in jail, we house them while they’re in jail, then we kick them out the door. What happens out the door… who cares?”
Last year, Cantrell faced a maximum of fourteen years in prison on drug charges. But under realignment, after serving six months in jail, he started renting a room at New Life with the monitor strapped to one ankle and a GPS device strapped to the other. Cantrell was one of more than a thousand people who, by last December, were enrolled in the Kern County sheriff’s “virtual jail,” a combination of programs created or dramatically expanded under realignment. Today, the county jail is “almost like a re-entry center,” according to Lt. Gregory Gonzales of the sheriff’s office. “Everybody we’re talking to, we’re trying to figure out: How can we get you to not come back next year?”
As a result, the jail now offers classes on domestic violence and food safety. There’s a new drug program and an expanded GED course. Inmates found not to pose a risk to the community are released with monitors. A sheriff’s supervision program has more than quadrupled in size. Centers like New Life have received state funding to expand their services, and the probation department has doubled the size of a day reporting center that offers counseling, job training, parenting classes and more.
For people like Cantrell, effective rehabilitation programs can mean the difference between returning to a cell or not. Yet such spending in Kern County represents just a sliver of its realignment budget: only 15 percent of the county’s nearly $11 million in state funds for 2011 and 2012 were set aside for these programs, according to data collected by researchers at Stanford Law School’s Criminal Justice Center.
Moore argues that Kern County doesn’t need to spend more on rehabilitation. If prisoners “fail the programs and we have no jail beds to send them back to for failing, what’s their incentive to be successful?” he says. The county is expanding its jail system with a $120 million, 700-bed facility that is expected to open in 2017.
Kern County is far from unusual in its approach. Most counties set aside less than 20 percent of their new state money for rehabilitation, according to the Stanford data. Fifteen counties budgeted nothing. Instead, they retrofitted jails, refurbished beds and hired deputies to staff those jails, along with other traditional law enforcement expenditures, says Petersilia.
Do these numbers confirm the ACLU’s warning? Petersilia says they do—but only up to a point. “The sheriffs were the knee-jerk reaction,” she says. “When nobody else had a plan, they had built facilities. They were right there at the ready.” Despite that initial binge in jail spending, a closer look at Stanford’s research reveals a recent shift: counties are beginning to use the money as it was intended.
For Cantrell, that shift offered a bit of hope. He had seven months of sobriety, and he believed facilities like New Life were critical to keeping people like him out of a cell. “If a guy is serious and he wants to do something and wants to change, they provide an atmosphere for that,” he told me. Sadly, for Cantrell, that chance was fleeting. One morning in February, a few days before his birthday, a truck ran a stop sign and collided with his vehicle. Cantrell died at the scene.
Today in Sacramento, Jerry Brown insists that his state’s prison crisis is long gone. In January, state lawyers filed documents in federal court challenging the population reduction order, arguing that federal authorities should stop meddling with the prison system’s health services. “We’ve gone from serious constitutional problems to one of the finest prison systems in the United States,” Brown said at a press conference in January. He called the reduction goal “arbitrary,” dismissing federal oversight as benefiting “people who fly across the continent” to “denounce how bad everything is.”
But lawyers for the class-action plaintiffs say that lethally inadequate medical care is still a problem. Raymond Patterson, the court-appointed expert charged with evaluating suicides, points out that in 2012 the rate of inmate suicides was twenty-four per 100,000—considerably higher than the national average and on par with a decade ago. In his last annual report, filed in federal court in March, Patterson concluded that a large number of those deaths were preventable. He has written more than a dozen such reports, and virtually none of his recommendations have been followed. So he ended with a farewell: “It has become apparent that continued repetition of these recommendations would be a further waste of time and effort,” he wrote.
Then there are the nearly 9,000 prisoners who remain in five out-of-state facilities run by Corrections Corporation of America, a private prison company. The cost of incarceration has continued to rise—to almost $52,000 per person annually—while rehabilitation funding has plummeted from the Schwarzenegger era, to just over $1,000 per year for 2011 and 2012.
Criminologist James Austin describes the effect of realignment thus far as “not insignificant.” Still, he says, to meet the reduction goal, the state must reckon with the tens of thousands of other inmates who likely pose little risk to their communities but remain incarcerated under harsh sentencing rules. These include many lifers and aging inmates convicted of violent crimes. “If you look at the prison system, that’s what’s wrong,” Austin says. “There are a lot of low-risk people in there.”