Leiden Law Blog

Is The Emergency Really Over?

Is The Emergency Really Over?

The United States still remains number one — in mass incarceration. In relation to the rest of the world, with a remarkable 2.2 million comprising the prison population and an unparalleled incarceration rate of 707 per 100,000 citizens, this achievement is not necessarily something to be proud of. In 2011, particular to the state of California, prisons were jam-packed holding double their intended capacity. On the surface, alleviating this prison overcrowding problem and promoting the health and welfare of inmates sounds like a fundamentally good idea. In the eyes of the United States' Supreme Court, this was much more than just a good idea; It was a necessary call to action for upholding basic constitutional and human rights.

Thus, in the 2011 Supreme Court Brown v. Plata decision, Governor Jerry Brown was required to relieve prisons of overcrowding via reform and release of nearly 10,000 inmates. But, its long and drawn-out history of Supreme Court rulings, related policy, and extended deadlines for releasing inmates, the effects of such decisions are just becoming apparent today. As a result, California's AB 109 (Assembly Bill 109) better known as the 2011 "Public Safety Realignment Act," seems to be the gift that keeps on giving. In 2013, Gov. Brown stated that "The prison emergency is finally over," but that may not exactly be the case.

System Overload

By prison "capacity" we are not just referring to physical space, but the ability of each inmate to meet minimum health and safety standards within their living conditions depending on the resources available. Prior to the 2011 SC ruling, California prisons operated at 200% design capacity and with no guarantee of increased infrastructure, funding, and supervision for this population influx, prisons were left to cut corners

Prison gymnasiums were no longer used for basketball and recreation, but substituted as stand-in dormitories filled with makeshift triple bunk beds. Sometimes housing 200 inmates at a time, supervised by two or three correctional officers. Overbooked, overcrowded, and understaffed, prisons appear to create systemic negative problems. Newman and Charles (2012) make note of the evidence brought forth by Plata (2011) of the inadequate mental health treatment and physician understaffing that perpetuated the deteriorating mental and physical health of inmates. Moreover, prison overcrowding and inaccessibility to psychiatric services only instigates episodic violence among a population already faced with the stress of being incarcerated. Thus, resulting in more frequent lockdowns, supervision, and punishment which bear the cost of greater staffing and security that comes with a hefty price tag in the form of taxpayer dollars.

Policy Technicalities

The passing of AB 109 was a response to the Supreme Court's order to reduce the prison population as a result of 8th Amendment violations; A victory for inmate advocacy groups, or at least it appeared so initially. Inmates would no longer be subjected to warehousing and overcrowding inside state prisons, but instead non-serious, non-violent, non-sex offenders ("non-non-nons") would be relocated from serving their sentences in prisons and placed instead in county jails or on post-release community supervision (PCRS).

From a legislative perspective, the county-centered correctional programs should better at identifying weak spots and offender needs and can tailor their design and budget much better to suit those needs. Taking a much less punitive approach, low-level offenders (non-non-nons) placed on PCRS are subject to the supervision of county probation officers versus the traditional "Trail 'em, Nail 'em, and Jail em" of parole agents. Now, ex-offenders who violate parole are no longer sent to state prisons, which were among the thousands, but now are subject to "technical violations" which offer jail time or community alternatives. The current cost of housing a prisoner nears $52,000 per year compared to the $25,000 demand post-realignment, which sounds like quite the savings.

But, does it really work?

As noted by Petersillia (2013) it's best to look past the hype in assessing the legitimacy and justness of AB 109's implementation and its longitudinal effects. As we can best learn from Rawls: Decisions and laws are legitimate not because they are just, but because they are enacted in accordance with democratic procedure. The principle of legitimacy goes beyond laws or sensible and fair implementation, but is contingent upon the consensus by whom the laws are imposed. Therefore, although we can view compliance as means for recognizing legitimacy —Like California forming AB 109 post-Plata and counties soon following AB 109's provisions — it does not mean that compliance confirms that something is legitimate in itself.  Just because counties in California are acting in accordance with AB 109, it does not mean that they believe the measure to be in holistic alignment with their own ideologies for prison reform. But conformity to the policy outweighs the costs associated with objection.

That said, it could be argued that the State is basically playing a game of musical chairs but with a heavy social and financial price tag. The State is basically saying "You're the expert!" and shifting the burden of responsibility to counties meanwhile justifying that behavior with a paycheck. So in one sense, we are de-clogging the prison system, but consequently dumping tens of thousands of inmates into jails instead. These counties, more likely than not, do not have the financial reserves and infrastructure to cope with the new inmate move-ins. Also lack of sleeping space is paired with a shortage of resources such as medical care and facilities which county jails are ill-equipped.

Jail facilities intended for short stay offenders of maximally one year, now house inmates for five or more years. Thus to deal with this influx, jails are often left to explore other options for "triple-nons" such as release with probation, tracking, house arrest and split sentences or, as a last resort, early release altogether. But, these alternatives also place unexpected demands on the social services, post-release, and parole authorities as well.

What does the future hold?

Despite the promising optimism of Brown and his notions that putting power back in the hands of local authorities will stimulate creativity and solutions for this incarceration problem, the numbers seem to fall short of their expectations. Although there is no indication that realignment affected serious crimes like rape and murder, it does affirm the increased incidence of property crimes up by near 15% between 2011 and 2012.

For the time being, Realignment is still in its early stages of effect. Public safety isn't seemingly an immediate threat but another issue at hand is victim notification. Previously, victims were to be notified by the state when an offender was transferred and/or released. But now, due to the jurisdictional shift and a surge in early releases, counties now assume the job. Realignment has been touted as one of the greatest experiments in American incarceration policy, so setbacks and shortcomings are to be expected. Imprisonment rates are still absurdly high within the state of California relative to its global neighbors. But it's good news if that rate is dropping, even ever so slightly.

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