Realignment and the State corrections crisis

Our cohort has started working with the County Sheriff’s office on a project to evaluate the levels of recidivism in San Francisco, the effectiveness of corrections programming and alternative sanctions, and CCSF’s ability to adapt some of those services to a new population. It could not be timelier. The US Supreme Court upheld an injunction against California’s Department of Corrections and Rehabilitation last month for civil rights violations like inadequate medical care and services, and violence, due to overcrowding (see Brown v. Plata). The number of prisoners incarcerated in California since the 1970s has increased sevenfold, and the system is now over 175% of its official inmate capacity with 143,000 prisoners (down from 173,000 in 2006). This was identified as a significant cause of the rights violations, and so the State was ordered to either (a) increase capacity and services or – since California’s annual budget is still short by several billion dollars – (b) to release or redistribute approximately 33,000 prisoners.

The ruling itself was no surprise. The case was pending for several years, and it was really a matter of time before the High Court followed up in the case – it was just a bit earlier than most people expected. Unfortunately, this means San Francisco and hundreds of other municipalities across California will be absorbing some of the State prisoners into their jails and local corrections programs. The official objective is to move low-level offenders closer to their communities, as this has shown to encourage rehabilitation and stabilization – but admittedly, it’s also about the budget and a federal injunction.

This is a new demographic for county sheriffs – more serious crimes, different affiliations, somewhat more radical behaviors, and parolees. Counties are generally ill-equipped to manage these offenders, but we have to learn. The City’s expecting at least 600-800 new state prisoners next year. It is difficult to know a definite number, however; the state doesn’t share all inmate records that signify who’s eligible for the transfer.

As a state, we need to ask some important questions, foremost of which is how our already enormous corrections system has swelled to nearly twice its official capacity. Is it the fault of judges, or lawyers, or the police? Unfortunately the problem is not that simple. There does not seem to be any single mechanism to blame or switch to flip that would resolve this crisis – and with costs skyrocketing, a structural state deficit, abuses gaining public attention, and with a new court injunction, it really is a crisis for the state.

But if I were to dismiss nuance and point to something as a fundamental structural flaw, I would start with California’s infamous Three Strikes Law.

Passed in 1994 by the legislature and then reinforced by voter initiative, the Three Strikes law mandates an enhanced sentence for any third felony conviction.” On the face of it this sounds reasonable, right? If a person is going to commit three separate felonies, then they lose the benefit of the doubt and deserve to be punished with an even harsher sentence. “They had their chance, now throw away the key,” the theory seems to go.

Consider these two facts. Unlike most other states with similar laws on their books, California actually counts first and second strikes by individual charges, not by unique cases (see People v. Furhman). This means that someone can accumulate their first and second strikes in the same court proceedings.

Secondly, California has an unusual category of charges called “petty felony theft”, in which the state charges crimes of theft, robbery and shoplifting of values under $400 as a felony if the offender has a record of any of these crimes. This creates the odd, but exemplary circumstances that led to Jerry Dewayne Williams’ infamous third strike pizza conviction. In 1995, Williams stole a piece of pizza from a group of kids. He already had two strikes for robbery and attempted robbery, so when he was charged with stealing a slice of pizza, Williams was sentenced to 25 years in state prison. Fortunately, his sentence was later reduced to 6 years after several technical appeals.

A new question expectedly arises: If that’s so absurd, why would the judge issue such outrageous sentences to Williams or other offenders like him? As per the 1994 law, these tougher sentences are mandated. The judge may have some wiggle room in dismissing a previous strike or in adjusting certain terms of the sentence, but he or she generally loses judicial discretion in 3rd strike cases. The law even eliminates “striker” eligibility for probation, and requires offenders to serve their time in prison instead of in a rehabilitation facility.

Plenty of challenges to this law have been made over the last 17 years – especially on allegations that the CA law violates Eighth Amendment protections of reasonable punishment proportional to the crime committed. So far these challenges have been overruled by State courts and the US Supreme Court has not taken an official position.

According to the California State Auditor’s May 2010 report,

“As of April 2009, 25 percent of the inmate population was incarcerated under the three strikes law.” (2009-107.2, p.1) … “We also estimate that $7.5 billion of the $19.2 billion in additional costs associated with striker inmates is attributed to strikers whose current convictions are for felonies that are not strikes [as defined under California penal code] .” (Id, p.21)

Some marginal improvements have been made to the Three Strikes initiative, such as allowing certain defendants convicted on non-violent drug possession to qualify for probation. But voter initiatives are incredibly difficult to overturn, even when they are not amendments to the state’s constitution. Elected legislators cannot simply alter or redact legislation that is the product of popular initiatives, but must either appeal to the courts or to the public through an open election. Californians have very rarely voted to weaken statutory criminal punishments, and the Three Strikes law still enjoys majority support.

All things considered, the roots of this problem are much deeper and older than a 1994 initiative in California. Academic fields of sociology, psychology, criminology, social services best practices, and community resource planning have all evolved and matured over the past century, and yet it seems that overall our penal corrections have not. I am happy to defend San Francisco here – the Sheriff’s Office diverts a majority of offenders into rehabilitation programming and alternative sanctions so that they are not housed for long periods in county jails with little to do but adapt to inmate etiquette. But they are a staggering exception. At the core of this conflict is a culture of harsh reprimand and punishment, and a dependence on the penal system to band-aid much larger social issues.

Costs of detention have now risen over $48,000 a year per inmate, and the Supreme Court’s recent ruling on overcrowding is a rude awakening to State policymakers. California now faces the reality that its corrections system is simply unsustainable. It’s time for us to tackle prison overcrowding with an earnest effort, and to revive a serious public debate about the structure and intent of our corrections system.

I do not pretend to have a catch all solution to the prison crisis here in California. But I do hope that some of you will start to think about these issues as San Francisco, the state and the country begin to face off about prison reform. It is a serious fiscal concern, a snowballing social dilemma, and a telling manifestation of the relationship we hold with our government as the enforcer of our laws. Think about it next time some one suggests “throwing away the key”. It hasn’t worked so far.