Assessing the Economic and Public Safety Impact of California’s Correctional Realignment: Assembly Bill 109

ABSTRACT

California’s Governor Jerry Brown signed Assembly Bill 109 (AB 109), known as the “2011 Realignment Legislation,” into law on April 5, 2011. This shifted responsibility for monitoring, tracking, and incarcerating lower-level offenders from the state to the 58 counties. Prior to realignment, the state spent $183 billion in 2007 on inmate supervision. After realignment, the state has allocated $2 billion to the counties and an additional $4.4 billion by 2016-2017. The cost of realignment is expected to increase as more and more offenders are transferred from the state to the counties. Since the state has constitutionally guaranteed funding to the counties will this spending eventually become greater than pre-realignment? Also, county probation departments will be tasked with supervising an additional 60,000 offenders who will be on Post-Release Community Supervision (PRCS). Will this have an effect on public safety in any way? These are the problems being addressed by this dissertation. The purpose of this (qualitative) study is to identify the critical components pertaining to California’s corrections spending before and after AB 109 and its possible effects on public safety. Since AB 109 was created in response to the Supreme Court of the United States’ affirmation of the Brown v. Plata case, realignment of the state’s prison population will not stop until it has reduced that population by approximately 40,000. Should state prisons reach another unacceptable number deemed by the courts, it is important to identify whether realignment is merely shifting a problem from the state to the local level and if the economics of realignment spending is appropriate. This information will provide governmental leaders with additional knowledge to make insightful decisions for the future.

CHAPTER ONE: INTRODUCTION TO THE STUDY

Introduction

California’s Department of Corrections and Rehabilitation is expected to lower the number of inmates in state prisons by approximately 40,000 by 2014 due to excessive overcrowding. The offenders in question are felons classified as non-serious, non-violent, non-sexual who will be transferred from state custody to the state’s fifty-eight county jails. It does not include those prisoners in known prison gangs. This reform was passed into law under the name Assembly Bill 109 (AB 109). Also known as the “2011 Realignment Legislation”, AB 109 was signed into law by California Governor Jerry Brown on April 5, 2011. After a long battle with the courts regarding California’s overpopulated prison systems, the United States Supreme Court ordered California to reduce its prison population (Brown v. Plata, 2011). This law will dramatically shift responsibility from the state to the counties for tens of thousands of offenders (Office of Governor Edmund Brown, 2011). A stated goal of the law is: “AB 109 will reduce the number of offenders in the state prison system and assist in minimizing the state of California’s fiscal crisis” (Santa Clara County, 2011, p.4). This major shift in state corrections policy will undoubtedly have a major impact on the state’s counties.

As the state acts to comply with the Court’s order, questions remain regarding how the counties will be able to adapt to the expanded responsibilities related to these thousands of new inmates due to arrive in their jurisdictions. With unprecedented financial crises and budget deficits affecting the state and virtually every county, this study assesses the additional financial impact of AB 109 upon law enforcement agencies within the counties of California and their ability to take on this new responsibility. Although the state is providing funding to the counties to help supervise these additional felons, there are no established statewide standards regarding what the counties do with the money. There are also no uniform policies in place to help evaluate if in fact, the funding provided is adequate or if individual county’s policies regarding realignment are effective and beneficial to the community. The failure or success of realignment is important to monitor so that county officials are able to ensure public safety.

Months prior to the passage of AB 109 the U.S. Supreme Court upheld a federal court order (by the Three-Judge Panel) that California reduces its prison population to 137.5 percent of design capacity within two years. The simplest and most direct method of reducing the population of state prisons, it was decided, was transferring the authority for a certain classification of felons—so-called low-level felons—from the state to the counties in which they committed their crimes and were convicted. This process, called realignment, created three specific changes in the management of these lower-level felons in California:

1) Individuals newly convicted of felonies deemed ‘non-serious, non-violent, and non-sexual’ (and who have no prior convictions for a serious, violent, or sexual offense) are now sent to county jail rather than state prison; 2) Parole violators are now returned to county jurisdiction rather than state prison for detention following a revocation; 3) Individuals sent to prison for non-violent, non-serious, and non-sexual offenses are now released to county probation departments (rather than to the state parole system) for supervision under a program known as post-release community supervision (PRCS) (Bird & Hayes, 2013, p. 6).

All three of these elements will impact California’s counties in specific ways. Counties are now responsible for housing felons in county jails that were never designed to accommodate the extended sentences that felons incur. The felons that counties now have responsibility for are also known as 1170(h)s, based on the penal code upon which their sentences are determined. In light of the fact that many county jails are already facing capacity issues, realignment will add a new set of problems (Lofstrom & Raphael, 2013). Based on the requirements of PRCS, the counties will also need to determine what types of programs may best serve the rehabilitation needs of offenders. Finally, since many parolees will likely violate the terms of their parole and need to be returned to the county jail, resources will be strained to an even greater degree (Lofstrom & Raphael, 2013). Every county will need to determine how it will address these issues.

Supporters of realignment believe that the counties are better equipped to manage the low-level felons that are now their responsibility. One of the anticipated changes in the way these felons are dealt with is a greater emphasis on rehabilitation programs that will, hopefully, reduce the rate of recidivism in California (Bird & Hayes, 2013). The theory is that felons who are able to remain in their own communities will respond positively to county-sponsored programs designed to direct them away from criminal behavior. Considering the financial issues facing the state, counties are expected to provide drug treatment services and other programs that the state was unable to manage.

Funding for realignment is established and must be maintained by law. The largest percentage of this funding comes from a portion of the state sales tax which the legislature directed to the counties (Misczynski, 2011). Some counties were concerned that future lawmakers may decide to reduce the funding for realignment, which would obviously place the counties in a very difficult position since state funding is critical for this program to work. As a result of this concern, the legislature proposed Proposition 30—a constitutional amendment that guaranteed the finding for realignment. This Proposition was approved by California voters, in spite of the fact that it provided for a temporary state sales tax increase and higher income taxes on the wealthiest residents (California Budget Project, 2012a). Based on the current laws in place, the counties appear to be protected, at least financially, for the foreseeable future.

Realignment is a process that is not unique to corrections. In California, the term often refers to the process of shifting responsibilities from one agency or group to another that is viewed as better equipped to carry them out (Kee, 2004). California first utilized the term realignment with respect to changes made in mental health programs that were—just like corrections realignment—shifted from state to local responsibility, according to Kee (2004). A better way to describe the process is acknowledging it as “fiscal (de)centralization,” defined as: “The devolution by the central government to local governments (states, regions, municipalities) of specific functions with the administrative authority and fiscal revenue to perform those functions” (Kee, 2004, p. 166). Corrections realignment under AB 109 was established to address the fiscal crisis at the state level.

In spite of the goals of realignment and the hopes for its success, there are areas of concern. One of the most consistent topics discussed is the potential problems counties may experience with the implementation of AB 109 (Taylor-Nicholson & Russi, 2012). Without a doubt, some levels of government are better suited for some responsibilities, but there is no consensus opinion regarding who should take the most responsibility for managing offenders with criminal records. There is little doubt that the primary reason for transferring the responsibility of low-level felons from state to county level was financial—followed closely by legal—regardless of claims that the counties can do a better job. Considering the reality that the 58 counties in California vary greatly in size and financial capability it is difficult to accept a blanket statement that the counties are better equipped to handle these corrections responsibilities. Fiscal decentralization may indeed work as anticipated, but there is a definite need for analysis of the process to ensure that counties are not overwhelmed and serious issues—including public safety issues—do not become a problem.

With so much riding on the results of realignment, there should be mechanisms in place to make sure that the program is working properly and effectively. However, there are few methods in place to allow proper monitoring of compliance (Taylor-Nicholson & Russi, 2012). One of the most critical elements of realignment, the Community Corrections Partnerships (CCPs), did not legally have to submit a plan of action during the first year of realignment, and there were no penalties for not providing a plan at all (Taylor-Nicholson & Russi, 2012). No state agency is responsible for ensuring that counties have effective plans in place to make realignment work. Consequently, it is just as likely that the counties will fail with realignment as they will succeed.

In spite of the focus of realignment to stress rehabilitation over punishment, there is no guarantee that this will become a reality. Some critics of the policy observed that the counties are provided no incentive to meet the stated goals of AB 109, financially or otherwise (ACLU, 2012). Considering the diversity of the 58 counties in California it is very likely that there will be few common standards but that different programs will be developed based solely on the unique needs of each county. Indeed, this is already taking place according to many sources (see, e.g., Misczynski, 2011). The divergence of programs will likely continue to grow over time.

Lastly, California is unable—unlike most other states—to raise additional revenues through property taxes (Taylor-Nicholson & Russi, 2012). Accordingly, counties do not have that tool available to provide support for additional services they may need to develop to respond to realignment. Nevertheless, the ultimate success of realignment relies on the ability of counties to receive a continuous stream of funding in order to support the programs necessary for providing rehabilitation services, as well as increased jail space if needed. Counties are, therefore, truly at the mercy of the state and must hope that nothing is changed in the future to interfere with the flow of financial support of realignment.

Background of Problem

Currently, California has the largest state-run prison system in the country. The California Department of Corrections and Rehabilitation (CDCR) has thirty-three adult correctional institutions and operates thirteen additional adult community correctional facilities (CDCR, 2011). These adult correctional institutions are considered the state prisons in California; they are responsible for housing adult inmates.

Furthermore, thirteen adult community correctional facilities (CCF) are institutions that are used by CDCR to house minimum- and medium-level custody inmates in a dormitory-style environment. Occasionally, vocational programs are provided to low-level inmates (CDCR, 2013). It is important to note that AB 109 already has significantly impacted CDCR’s responsibility to housing these inmates. According to a newsletter issued by CDCR on December 7, 2011, almost half of the CCFs will be closed due to realignment (CDCR, 2011).

Over time, the state prison system began to suffer from overcrowding and, consequently, the cost of incarceration also increased. The average cost per prisoner, per year, is $48,536 (Harvard Law Review, 2010). The passage of the Three Strikes Law and California’s “war on drugs” contributed to turning CDCR into one of the nation’s largest and costliest state-run prison systems. Due to the Three Strikes Law’s life sentencing mandate, California has the nation’s highest number of incarcerated prisoners serving life terms (Moore, 2007). Several studies of the “Three Strikes Law” suggest that evidence does not support it is a crime deterrent or an effective way to reduces crime (Miller, 2012; Parker, 2012; Jones, 2012).

Governor Brown’s introduction of determinate sentencing in the late 1970s also contributed to the overcrowding of prisons by taking away sentencing discretion from judges. In 2000, CDCR reported inmate population increased by 554%, with a total of 160,655 prisoners and an operating budget of $10.3 billion (CDCR, 2011). The growing prison population was a well-known problem but went unaddressed for many years.

In 2004, the Corrections Independent Review Panel, appointed by then-Governor Schwarzenegger, reported CDCR “suffers from a multitude of problems, including out-of-control costs, [and] a recidivism rate far exceeding that of any other state” (CDCR, 2011). In 2011, CDCR expenditures consumed approximately ten percent of the State’s budget. This, combined with the economiccosts facing the state, translated into inadequate healthcare and overcrowding living conditions for inmates in state prisons. Prisoners began to file lawsuits against the state and two cases eventually forced unprecedented changes in how California will handle their prisoners. Coleman v. Brown and Plata v. Brown are two landmark cases. In summary, Coleman v. Brown forced the state to reduce the prison population and when the state failed to do so, Plata v. Brown gave birth to AB 109-California’s Realignment Legislation.

While signing AB 109, Governor Brown acknowledged, “For too long, the State’s prison system has been a revolving door for lower-level offenders and parole violators who are released within months…Cycling these offenders through state prisons wastes money, aggravates crowded conditions, thwarts rehabilitation, and impedes local law enforcement supervision” (Lin & Petersilia, 2013, p. 13). While ultimately designed to decrease financial pressure on the state, realignment also is expected to significantly reduce recidivism by means of programs designed and implemented at the county level. Ultimately, under realignment, counties will have to take complete responsibility for the sentencing of low-level felons, since they will not be sent off to state prisons, which was formerly the practice. Counties will now, theoretically, decide to avoid sentencing certain offenders to county jail whenever possible to avoid crowding issues locally (Ball, 2011; 2013). How this will work in reality remains to be seen.

Not only many experts but officials at the county level question the initial distribution of funding under realignment. The funding formula was based on the level of incarceration in county jails during the previous year. Counties with lower incarceration rates were most vocal in their complaints regarding funding since they feared that the funding would be insufficient to deal with the actual number of offenders in the coming years (Bird & Hayes, 2013). Figure 1 displays a wide variety of incarceration rates across California. Some counties send few offenders to prison while others send many, leading to greater prison inequality. While the former counties were proactive in addressing the issue of state prison overcrowding, they are now being penalized financially.

(Figure 1 omitted for preview. Available via download)

Decentralized governance—which is the basis for corrections realignment in California—was established by the U.S. Constitution. The Constitution provides for a separation of duties between the state and federal governments, and the states have copied that format in assigning responsibilities within their borders (Taylor-Nicholson & Russi, 2012). In spite of this reality, a level of contention has always surrounded decentralization, especially in light of debates regarding spending authority. One authority observed: “The most desirable degree to which political power should be decentralized by a state government to local governments has been a source of major controversy since the end of the Revolutionary War” (Taylor-Nicholson & Russi, 2012, p. 2). This controversy is certainly apparent regarding corrections realignment in California under AB 109.

Statement of Problem

The problem to be addressed within this study is that the state’s prison realignment funding formula is inadequate, resulting in the increase of offender’s recidivism in counties across California. Currently, funding is based upon past-years’ prison incarceration averages instead of alternative community-based programs and services. Hopper (2012) and Hoffman (2013) suggested that funding should not be based on former incarceration rates but the willingness and ability to employ cost-effective alternative programs and services based on the number of released offenders. This study is important because it affects public safety. Having additional supervision duties for realignment inmates will deteriorate current law enforcement resources unless the state provides adequate funding.

Already under realignment 23,000 low-level felons are serving their terms of probation under the authority of counties rather than the state. This is part of the PRCS program that is expected to be a critical element of realignment. The Chief Probation Officers of California (CPOC) confirmed that these offenders are classified as non-violent, non-serious, and non-sexual offenders and are therefore qualified for local supervision under the jurisdiction of the counties (2012). One of the issues raised regarding this classification is that it does not take into consideration previous offenses. In other words, some of these felons now considered low-level and not a threat to public safety may have previous convictions for violent, serious, or sexual offenses. However, previous offenses are not considered under the guidelines of realignment (CPOC, 2012). County probation departments may be equipped to handle offenders who are truly low-risk, but there is a possibility that some of these offenders may be at higher risk than they appear.

County jails are also already housing over 15,000 felons that would previously be found in state prisons. Although they are currently in jail, they will eventually be released and the county will continue to be responsible for them under a combination of Penal Code section 1170(h) and the Mandatory Supervision (MS) provision of realignment (CPOC, 2012). Clearly, realignment is making significant changes in the corrections environment of California, since “the state prison population under 140,000 for the first time since 1996, and the state parole supervision population is under 70,000” (CPOC, 2012, p. 1). This research examined how counties are responding to the numerous issues created by realignment.

Notwithstanding arrangements for financing AB 109, realignment funding is—and will remain—one of the most serious issues counties will have to deal with. As proven by many programs throughout history, claiming to have a stabile provision for funding does not always translate to reality. Furthermore, counties are expected to create programs and deal with offenders differently than the way the state has historically carried out that same responsibility (Misczynski, 2011). The counties are also expected to make these changes without any lead time, and learn how to make realignment work in spite of the lack of training or guidelines regarding how best to carry out their expanded responsibilities. At the minimum counties will be developing new programs, and at the other extreme, they will need to construct new facilities.

Correction realignment in California is essentially a high-stakes experiment with a wide variety of possible outcomes. It is critical to understand how counties are able to carry out their expanded responsibilities under realignment, which requires continuous evaluation. To date, there have been very few efforts to study these issues. This study is specifically designed to fill a gap in available data regarding how well counties are responding to realignment. One expert has suggested that any study on realignment consider the following three areas:

“Crime rates. What are the effects on crime? If the effects vary from county to county, can we identify why?” (Misczynski, 2011)

“Financing. Does state money cover county costs? Why do some counties do better than others?” (Misczynski, 2011)

“Rehabilitation. Are counties better than the state at lowering recidivism? Equity. How varied is the treatment of low-level offenders across counties? What should the standards be and how can they be measured?” (Misczynski, 2011)

Purpose of the Study

The purpose of the study is to add literature and quantitative knowledge regarding a very serious and important topic that affects all Californians from the intended or unintended effects of the Realignment Legislation. The public policy and law regarding realignment is unprecedented and has forced our justice system to undergo the most sweeping change in recent history. The intended audience for this report includes members in academia, government, policymakers, and most importantly, the general public.

There are essentially three major offender groups affected by the realignment. The first group is felony offenders who are not convicted of the so-called “serious, violent, or sex” crimes. Instead of going to state prison, they will serve their time in local county jails. The second group involves already released felons who are considered “non-serious, non-violent, and non-sexual felony offenders.” They will no longer be under the supervision of parole officers, instead will be transferred to the supervision of the county probation departments, under the label “Post Release Community Supervision” (PRCS). The third group is the PRCS violators, who violated conditions set forth by the county probation department. Instead of returning to prison, they will be remanded back into the county jail. As one might imagine, the realignment has shifted all of the responsibilities to control, house, and supervise the offenders from the state to local counties. Petersilia (2013) noted that more than 100,000 felons have been diverted from inside prison to a county jail, or are freed on probation. Petersilia stated all front line police and sheriffs she interviewed reported a level of concern about declining public safety due to realignment.

By conducting literature reviews, analyzing government documents and budgets of various agencies regarding realignment, and analyzing the results of surveys sent to sheriffs in the 25 most populated counties in California, the purpose of this study is to provide detailed and relevant information to all stakeholders with the ultimate goal of contributing to the enhancement of public safety.

Theoretical Framework

The state provides little oversight regarding how AB 109 funds are to be spent by counties. To augment the problem, counties are also not required to show or report any results regarding the success or failure of their realignment responsibilities. AB 109 provides counties with unprecedented responsibilities and discretion over the inmates because most experts in the justice system believe that local jurisdictions are better situated in dealing with their inmates as opposed to their state counterparts.

AB 109 provides financial assistance for the counties to help them care for their new responsibilities. In fact, “the state has allocated $2 billion through 2013-2014 and anticipates distributing $4.4 billion to the counties by 2016-2017” (Petersilia & Snyder 2013, p. 7). While this funding could theoretically be used toward the construction of new county jails to house the expected influx of felons, the expectation (and preference) under realignment is that the funds will be utilized to improve key programs based on evidence-based practices. Since realignment began, some counties have indeed opted for programs such as free college education which are designed to rehabilitate and assist, while others have simply decided to provide additional jail space (Petersilia & Snyder, 2013). Sheriffs in each county will be instrumental in deciding how best to allocate the state funds available under realignment. Options range from strengthening enforcement to focusing on treatment or support services.

Research Questions

This study proposes that corrective realignment, while it will provide financial relief for the state, will create public safety issues and higher recidivism rates for many counties.

This study will seek to answer the following questions:

1. How do county sheriffs assess their county’s ability to take on the expanded set of responsibilities under AB 109?

2. How do county sheriffs assess the state’s realignment funding formula and allocation for supervising additional inmates under their custody?

3. How has AB 109 impacted public safety in the 25 most populated counties?

4. How has AB 109 impacted recidivism in the 25 most populated counties?

Significance of the Study

This research is important because, for the first time in California’s history, the state’s prisons are relinquishing their responsibility to supervise a substantial number of felony offenders and moving them into county jails. This reform may result in a significant impact on future crime trends, impacting all citizens of California. As it stands, the state does not have a plan for monitoring the effects of realignment, since no statewide standards for evaluating county policies and outcomes are in place at this time (Lofstrom, Petersilia, & Raphael, 2012). Thus, the knowledge gained from this study will hopefully assist all decision-makers and stakeholders to determine an appropriate assessment of the bill and the most fundamental goal of AB109—to improve public safety.

Definition of Terms

The following key terms are provided to allow a better understanding of the dissertation. These definitions were developed by the researcher.

Average Daily Population (ADP) - is the average of one inmate in one bed or alternative custody program slot for one year.

California Department of Corrections and Rehabilitation (CDCR) - is the state agency responsible for housing offenders who do not qualify to be jailed at the county level.

Community-Based Supervision- refers to the supervision of offenders while providing them with left skills, tools and other resources to reduce recidivism.

Crime Rates- are data related to crimes and arrests used to maintain crime statistics by governmental and non-governmental agencies.

Day Reporting Centers- is a facility or location where offenders can stop by to gain services, programs or supervisions.

Electronic and GPS monitoring- is the use of Global Positioning Service to track the locations of offenders.

Flash Incarceration- is a short-term period of custody sanctioned for post-release community supervision offenders who violations terms of their release.

In-Custody Population (ICP) - refers to offenders who are newly convicted of the non-violent, non-serious, non-sex crimes who will serve time in county jail instead of state prison due to AB 109.

Individual Achievement Plans- are details in which Probation Officers will develop on their clients to help assess how they are doing while out of custody.

Mandatory Supervision Population (MSP) - are newly convicted offenders of the non-violent, non-serious, non-sex crimes who serve their time in county jail and are sentenced to a term of mandatory supervision by the county.

Non-Serious/Non-Violent/Non-Sex Offenders- refers to offenders who are not considered by the state as serious, violent or sexual offenders who are eligible to be released on realignment.

Offender Recidivism- refers to the rate of offenders recommitting crimes after being released and being placed back into custody.

Post-Release Community Supervision (PRCS) - is the title offenders are labeled under by the county when they are released back into the community while being under the supervision of the county.

Realignment- refers to the process of AB109.

Re-Entry Programming- can be a number of educational or vocational programs designed to help reduce offender’s recidivism when they are released back into the community.

Work Release- refers to allowing offenders to maintain community connections by allowing them to work jobs while still being monitored.

Summary and Organization of Remaining Chapters

Research on this topic is unique since there are limited studies on realignment in spite of the fact it was enacted in 2011. The counties are already feeling the impact of realignment across the state, but there are few studies that analyze the results. Although realignment is barely three years old, impacts from it have already been felt and local leadership is scrambling to meet its demands. The hope of this dissertation is to provide useful information to the leaders and decision-makers to make the right decisions. The remaining chapters in this dissertation are divided into four sections. Chapter 2 will be dedicated to the review of related literature, which will provide an important historical perspective of CDCR’s prison overcrowding, CDCR’s legal battles with the courts and the ultimate birth of AB 109. Chapter 2 will also provide information on Mass incarceration in the United States; Attempts to reduce prison populations in states; Reasons for high prison populations; Impetus for the 2011 corrections realignment; Corrections realignment in brief; Overview of realignment funding; County attitudes toward AB 109; Police attitudes toward AB 109; County sheriffs’ attitudes toward AB 109; Potential effects of realignment; Recidivism; Potential safety risks; Impact of realignment on county prison populations; and Realignment experiences so far. Chapter 3, the research design and methodology section, will describe the qualitative research methods used in this dissertation. Procedures and data collection by means of a survey of county sheriffs are described, including the processing and analysis phase. Chapter 4 will present the findings and an analysis of the data collected by means of the survey. Any relevant information or observations obtained during this study will be provided. Finally, Chapter 5 will consist of the summary, recommendations, conclusions and suggestions for future research.

CHAPTER TWO: LITERATURE REVIEW

Introduction

This chapter was designed to collect relevant literature related to the problem addressed in this study. As noted in the previous chapter, the problem to be addressed within the proposed study is that the state’s prison realignment funding formula is inadequate, resulting in the increase of offender’s recidivism in counties across California. Currently, funding is based upon past-years’ prison incarceration averages instead of alternative community-based programs and services. This study takes the position that funding should not be based on county incarceration rates but the willingness and ability to employ cost-effective alternatives programs and services based on the number of released offenders. This study is important because it affects public safety. Having additional supervision duties for realignment inmates will deteriorate current law enforcement resources unless the state provides adequate funding.

The purpose of the study was to add literature and quantitative knowledge regarding a very serious and important topic that affects all Californians from the intended or unintended effects of the Realignment Legislation. Public policy and law regarding realignment is unprecedented and has forced California’s justice system to undergo the most sweeping change in recent history. The intended audience for this research includes members in academia, government, policymakers, and the general public. This review of related literature provides readers with important historical perspectives related to this study.

Searches for relevant literature were conducted using the internet as well as library sources. Key terms used for internet searches included a wide variety of words and phrases involved with California prisons, AB 109, realignment in California, and related terms. Google Scholar, EBSCO, and Questia were the primary sources used for internet searches. The literature cited in this chapter includes books, peer-reviewed journals, government websites, and other respected sources of information.

Chapter Two considers numerous themes found in the literature regarding the status of prisons as well as the recent realignment process. This chapter is divided into the following sections: Mass incarceration in the United States; Attempts to reduce prison populations in states; Reasons for high prison populations; Impetus for the 2011 corrections realignment; Corrections realignment in brief; Overview of realignment funding; County attitudes toward AB 109; Police attitudes toward AB 109; County sheriffs’ attitudes toward AB 109; Potential effects of realignment; Recidivism; Potential safety risks; Impact of realignment on county prison populations; Realignment experiences so far; Data from five counties; and a Summary.

Themes

Mass incarceration in the United States. Decades of mass incarceration in states across the nation created a situation where the economic reality of the ever-growing populations of state prisons eventually became too severe to ignore. Consequently, many states faced the reality that the prison population had to be reduced somehow. The problem was emphasized in the fiscal year 2011 when spending on corrections accounted for over three percent of total state spending and well over seven percent of total expenditures (National Association of State Budget Officers, 2012). While some prison populations decreased slightly beginning in 2010—the first time that happened since 1972—the problem was already so severe that many viewed this slight decrease as unable to impact the economic reality or the overcrowding issues in place (Guerino, Harrison, & Sabol, 2012). States are therefore still struggling to identify methods for reducing the rates of incarceration to limit the economic impact of high prison populations as well as to promote new methods for dealing with offenders.

States have implemented various methods to tackle the problem of prison overcrowding. Methods utilized include reduction of prison sentences, expanding the benefits of good behavior, scaling back on some mandatory sentences (such as for some drug-related crimes), and leniency regarding probation violations. Some states have likewise closed selected prisons, expanded rehabilitation programs, and increased the ability of offenders to be sentenced to probation rather than prison (Mauer, 2011; Porter, 2010, 2011, 2012; Subramanian & Tublitz, 2012). The most common methods adopted by states relate to reductions in initial sentencing, early releases, and supervision (Davies & La Vigne, 2011).

Considering the fiscal reality facing the majority of states, the need to save money appears to be one of the driving forces behind the efforts to reduce state prison populations. Nevertheless, financial pressure is not the sole motivation for these recent innovations. Other factors include some significant shifts in policy based on a desire to take a more balanced approach to sentencing, especially as it relates to certain crimes (Greene & Mauer, 2010; Mauer, 2011; Porter, 2010; The Pew Center on the States, 2010). Criminal justice reforms across the country are therefore motivated by issues beyond financial concerns, despite the seriousness of such monetary concerns. A careful examination of these issues reveals changes in violent crime rates in many states, the realization that the so-called ‘war on drugs’ failed, and recognition that a significant proportion of the prison population is guilty of nonviolent crimes (Cole, 2011). The literature also indicates a possible shift in public opinion wherein many Americans have grown weary of simply locking away offenders without giving any consideration to possible alternatives or the overall cost of such a policy (Hagan & Dinovitzer, 1999; Lynch & Sabol, 2006). Many states are thus shifting to alternative approaches to crime and punishment, which necessitates an ability to analyze how these approaches may impact public safety.

Mass incarceration in the U.S. was created due to numerous divergent policies that combined to create the current environment in state prisons. However, states now appear to be shifting their emphasis away from lengthy prison sentencing to policies that stress reintegration and rehabilitation (Gerlinger & Turner, 2013). California is one of the leaders in this movement and is currently implementing significant changes including reduced prison sentences as well as adjustments in parole. Since these are not minor modifications, it is essential to monitor events in states such as California to determine possible long-term effects (Gerlinger & Turner, 2013). A reduction in prison populations will no doubt be beneficial from one perspective—addressing the problem of overpopulation—but it may also create additional problems. More precisely, by shifting the responsibility for a significant portion of offenders from the state to the counties (even some who may be high-risk), this policy may inadvertently result in overwhelming county officials’ ability to effectively supervise these offenders.

Experts assess policies that result in mass incarceration as actually contributing to higher crime rates in many cases. For example, according to Drucker, “very high rates of imprisonment concentrated in specific communities cause social disorganization, undermining the normal social controls of family and community that are the best (and most natural) guarantors of good behavior” (2013, p. 106). This scenario often turns into a sort of self-fulfilling prophecy in which the communities with the highest crime rates have more community members incarcerated, which destabilizes the community to an even greater degree. As a result, crime rates simply keep rising (Dolovitch, 2009). The funding issues currently impacting the states directly affect corrections inasmuch as funds required for the adequate care of additional prisoners are often unavailable since that money is also needed by other state agencies. Furthermore, funds for preventative programs, such as early childhood education, are also lacking.

Attempts to reduce prison populations in states. By the end of the first decade of the twenty-first century, a shift was observed in the prison population in the country. According to Subramanian and Tublitz (2012), the rate of imprisonment decreased for the first time in nearly four decades. At the same time, decreases were not observed in every state, but there was a great deal of disparity between various states. While over half of the states (26) experienced a reduction in the prison population, other states noted significant increases in prisoners over the same time period (The Pew Center on the States, 2010). There is not enough evidence to determine whether such a trend of diminished prisoner population will continue or was simply an anomaly. However, there is little doubt that new corrections and sentencing policies will modify the way that criminal justice is addressed in the country in the coming years.

The best-case scenario exists in states that have already implemented policies resulting in lowering prisoner counts while also reducing corrections-related spending (Subramanian & Tublitz, 2012). States are working on plans at the local level but federal agencies are also attempting to lend assistance to address prison population issues. One such agency, the Bureau of Justice Assistance, instituted “the Justice Reinvestment Initiative (JRI)” designed to support state development of evidence-based policies that can reduce costs while also improving public safety (The Urban Institute, 2013). Typical JRI provisions include the implementation of risk assessment, introducing a system of graduated sanctions for violations of supervision, enabling certain offenses to be reclassified as less serious, and alternative pathways for dealing with those who obviously suffer from mental health issues or addictions. These adjustments in sentencing reform include drug treatment programs, the ability to serve a sentence under community supervision, early release from prison for certain non-violent crimes, as well as other tools that do not include prison time (Davies & La Vigne, 2011; King, 2009).

Two states that have been successful with such programs are Michigan and Rhode Island, which expanded the use of community correction, reduced prison populations, and decreased the cost of corrections (Subramanian & Tublitz, 2012). Michigan’s success was built over more than a decade, beginning with a concerted effort to restructure parole hearings, implement a broadly-based reentry program, and eliminate mandatory minimum sentences for drug crimes. Between 2006 and 2009, these policy changes resulted in a 12 percent decrease in total prisoners in state correction facilities (Greene & Mauer, 2010). Three other success stories are Kansas, New Jersey, and New York, which also reduced prison populations due to similar policies that succeeded in Michigan, including alternative sentencing, the provision of aid to parolees, and reducing prison sentences. New York boasted a reduction of 20 percent in prison populations based primarily on revisiting drug laws that were passed in the 1970s (Mauer, 2011). Texas also proved successful in reducing the number of prisoners in state facilities based on a new focus on providing treatment for drug users with subsequent of drug court rather than simply putting them in prison automatically (Goode, 2013). In that state, the choice was made to adjust corrections policy rather than construct new prisons.

Other states have experienced success by means of supervision reforms. In Hawaii, for example, the state’s “Opportunity Probation with Enforcement (HOPE)” program was created to limit the number of probation violations committed by drug offenders and other similar crimes that typically experience higher rates of recidivism (Hawaii State Judiciary, n.d.). A conscious shift was made from the severity of punishment to certain and speedy punishment for probation violations. By directing resources towards those most likely to be repeat offenders—such as drug users with legitimate substance abuse problems—the state’s provision of services was highly effective. The HOPE program’s success rate motivated the corrections department of Washington State to adopt a similar model (Warner, Aylward, & Mullins, 2012). Since drug offenders comprise a significant percentage of prison populations, such policies are effective in reducing the overall prison population in states where they are utilized.

Responsibility for offenders in some states has been shifted to local (county) authorities as a means of reducing state expenses. Such redirection of jurisdiction is also claimed to result in improvements in public safety (Davies & La Vigne, 2011). Consequently, it is hoped that an increase in community supervision (rather than state prison time) will result in significant reductions in state prison populations. A number of studies and reports indicate that community-based programs reduce recidivism more successfully than simple incarceration inasmuch as such programs address the real needs of the offenders (Andrews, 2006; Andrews et al., 1990; Crime and Justice Institute at Community Resources for Justice, 2009). Conducting risk assessments enables county officials and professionals to identify which offenders will best be served by such programs which, in turn, allows local officials to utilize their resources most effectively (Andrews, Bonta, & Wormith, 2006; Clawson, Bogue, & Joplin, 2005; DeMichele, 2007; Latessa & Lovins, 2010; Latessa, 2004). Local authorities utilize community-based programs in an attempt to improve public safety in addition to aiding the states financially by shifting the responsibility for offenders away from state prisons.

While numerous states have reported changes in the way criminal offenders are dealt with, the changes underway in California are certainly the most expansive of any state. The current law—AB 109—is not the state’s first attempt at addressing the issue of overcrowding in California prisons. One of the first significant attempts at reducing prison populations in the state was Proposition 36, in July 2001. Proposition 36 enabled non-violent drug offenders to enter drug treatment programs rather than be sentenced to prison. More than 30,000 offenders were able to take advantage of that program (King, 2009). The program continued to increase its level of success over the years and within six years nearly seventy percent of offenders eligible for the program entered treatment. Nearly one in three offenders who agreed to treatment successfully completed it and was ultimately released from parole or probation (Urada et al., 2008). Further programs were added in California since then, including various attempts to modify probation and parole, especially by encouraging counties to take more responsibility (Administrative Office of the Courts, 2013; CDCR, 2009; Turner, Braithwaite, Kearney, & Haerle, 2012). But, while these programs resulted in reducing the state prison population, the reduction was not deemed sufficient enough to fully address the problem, which is why the state turned to AB 109.

The situation in California changed dramatically with the passage of AB 109 in 2011. State officials had to respond to a Three-Judge Court order that demanded a significant reduction in the population of state prisons and their response was AB 109, also known as “California’s Public Safety Realignment” (Petersilia & Snyder, 2013). The purpose of realignment is to shift the responsibility for a significant percentage of prisoners (or offenders) from the state to the counties. Petersilia and Snyder (2013) noted, “This is the biggest penal experiment in modern history” (p. 268). Unfortunately, the law required no evaluation of how this process would work in reality (indeed, there was no funding provided for such a task) and counties are not obligated to evaluate local (county) populations of offenders. Consequently, the actual impact of AB 109 on the counties—financially and on public safety—is difficult to assess (Misczynski, 2012; Petersilia & Snyder, 2013). Regardless, the law is in place and the counties will have to find a way to make it work.

The U.S. Supreme Court ruling in Brown v. Plata (2011)—that upheld the earlier Three-Judge Court ruling—demanded that California reduce its overall prison population by a significant percentage in order to correct what was ruled unconstitutional conditions in state prisons. While the primary issues considered in its ruling were based on inadequate access to healthcare, overcrowding affects many other areas of prison life, including security, rehabilitation services, and sanitation (Salins & Simpson, 2013). The issue of overcrowded prisons is certainly worth significant efforts on the part of the state and counties to correct, but it is still unclear whether or not early releases, adjustments in parole or probation, or any other reactive remedy will be effective in addressing the issues raised by the Court.

Reasons for high prison populations. Multiple factors contribute to the current state of the nation’s prison population, including an expanding population in states such as California. At the same time, one of the primary explanations relates to the long-standing public sentiment in the U.S. that offenders should simply be imprisoned without consideration of the impact in state prisons (Ditton & Wilson, 1999). The result of this ongoing public insistence on strict sentencing guidelines has motivated state legislatures to establish specific requirements that judges must follow in the sentencing of certain offenders. This process has been in place for several decades.

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Sentencing policies such as mandatory minimum sentences for specific crimes and the so-called ‘three-strikes’ guidelines created an environment where the courts had little leeway in the types or lengths of sentencing available, especially in California (see Figure 2). For decades, offenders were sentenced to prison time without the ability for probation or parole until a significant portion of that sentence was served (Ditton & Wilson, 1999). Another significant factor contributing to an excessive prison population is the highly-publicized ‘war on drugs’ which placed criminal punishments on a variety of activities that were formerly non-criminal. The purpose was to limit access to illegal drugs and, while that goal was never met, one definitive result was a significant increase in prison populations (Darley, 2005). Consequently, decisions made at a legislative level contributed to the dangerous number of prisoners held in state prisons.

California has a lengthy history of overcrowded prisons. More specifically, the prison population has exceeded planned capacity from the days of the state’s very first prison—San Quentin—in 1852 and the problem has only increased (Taylor, 2012). A number of efforts have been attempted in California to reduce prison populations but none of these efforts have proven successful enough to prevent the Supreme Court’s assessment that the state’s prisons do not adequately provide for inmates and indeed have developed “a [deficient] state of medical care” (Colb, 2010). The California Department of Corrections and Rehabilitation (CDCR) is responsible for the services provided to state prisoners, including medical and mental health services - particularly for mental health once prisoners are released. Nevertheless, due to prison overcrowding, the CDCR’s “security staff has imposed frequent and persistent lockdowns,” (Taylor, 2012, p. 20) which effectively limited the ability of inmates to access these needed services. Other issues in California state prisons include the lack of sufficient staffing in medical units which contributes toward “the spread of infectious diseases” among prisoners (Taylor, 2012, p. 21).

The impetus for the 2011 corrections realignment. Corrections realignment in California requires that tens of thousands of felons considered low-risk be housed in county jails when they were formerly sentenced to state prisons. Counties will also need to supervise former prisoners after they are released from state facilities. Consequently, it is believed that these changes

may have been the biggest…in California’s criminal law since Determinate Sentencing replaced Indeterminate Sentencing in 1978; Corrections realignment joined ‘Proposition 8’ in 1982; ‘Proposition 115’ in 1991; ‘Three Strikes in 1994’; and other large-scale changes in dramatically altering California’s criminal law landscape. (Byers, 2011, p. 7)

Dramatic changes such as these do not happen overnight and neither do they occur without a series of predictive events as forerunners. In hindsight, it is obvious that something this dramatic was destined to take place in California in light of the history of its state prisons and the laws that sent men there.

Predominantly, the realignment of the California corrections system was based on the fiscal needs of the state. In spite of the severe overcrowding and other problems with state prisons, it is unlikely such drastic measures would have been implemented apart from California’s severe economic crisis. At the beginning of 2011, the state had a budget deficit of well over $25 billion (Brown, 2011). Governor Brown attributed a large share of the blame for the fiscal crisis to the recession that had devastated much of the country’s economy. From 2007 to 2009, according to Brown, “all of [California’s] major revenues sources” (Fazzi, 2013, p. 431), including its “personal income tax, sales tax, and corporation taxes” (Fazzi, 2013, p. 431) were reduced by as much as 25 percent. “Although the economic downturn…was the chief contributor to the budget gap,” Brown observed, “California also entered the recession with an existing structural budget deficit, meaning…revenues did not cover costs” (Fazzi, 2013, p. 431). The Governor realized that the state needed to take dramatic and unprecedented action in order to address the budget deficits and attempt to return California to some semblance of sound financial footing.

The budgetary realignment proposed by Brown included a significant corrections element. Shifting the responsibility for a significant proportion of the state’s felons from state to county jurisdiction was one of the cornerstones of the governor’s plan (Fazzi, 2013). While finding additional sources of income generation was problematic, corrections realignment was a fairly simple and actionable plan. Since counties could care for lower-risk felons much cheaper than the state (in theory) Brown called for all but “the most serious and violent felony offenders” to become the responsibility of the 58 counties (Brown, 2011, p. 19-20). Swayed by the governor’s arguments, and motivated by the severity of the fiscal crisis in the state, the legislature easily converted Brown’s ideas into law.

Corrections realignment in California was established under the assumption that counties would receive reimbursement from the state for the added cost of supervising offenders (Fazzi, 2013). Payments from the state will continue indefinitely. Some find the financial aspect of realignment confusing in light of the requirement that the state provide financial aid to the counties as long as the system is in place. If the primary motivation for realignment was the severe budget deficit in the state, it seems counterintuitive for the state to provide financial backing for the counties (Fazzi, 2013). However, since the cost of county jails and county supervision is much lower than similar activities at the state level, California expects to see significant savings from corrections realignment. The governor anticipated these financial savings to contribute to positive growth in the state coffers, totaling at least $1.4 billion by the end of the 2014-15 fiscal year (Brown, 2011, p. 131). In effect, the state decided to spend money (by financing the counties in realignment) in order to save money (since the costs of corrections for the counties are lower than for the state). For the state, the finances appeared to make sense, but there were other issues involved with realignment as well.

While financial concerns are touted as the driving force behind California’s corrections realignment, the fact remains that the state had little choice in the matter from a legal standpoint. The Legislative Analyst’s Office (LAO) explained, “The 2011 realignment was also undertaken…to enable California to comply with a federal court order to reduce overcrowding in the state’s 33 prisons to no more than 137.5 percent of their design capacity by June 2013” (Taylor, 2012). Recently, the Three-Judge Panel extended that deadline for California’s compliance with these reductions (CDCR, 2014; see also Figure 3).

(Figure 3 omitted for preview. Available via download)

Since the only stipulation placed upon the state by the courts was the reduction of the prison population in state prisons—not a reduction of the total number of prisoners held in both state and county facilities—realignment directly addressed California’s need to comply with the court order.

Corrections realignment in brief. Realignment is precisely what that word implies—a shift of responsibility from the state to the counties. To correctly establish realignment, however, the state needed to accurately define ‘felon’ as well as which types of felons would be included in realignment and which would not. According to California law—and the laws of most states—a felon is an individual who commits at least one felony offense. State law distinguishes between crimes that are considered relatively minor (misdemeanors) and those considered serious (felonies) (Byers, 2011; Fazzi, 2013). Felonies are typically punishable by more severe penalties than lesser crimes. In California, a felony is punishable by incarceration of more than one year (Fazzi, 2013). Fundamentally, only offenders who have minimum sentences greater than one year are affected by corrections realignment.

Prior to 2011, every felon sentenced to a period of incarceration was required to serve that time in a state prison. There was no option to allow a felon to serve their sentence in a county jail prior to corrections realignment (Misczynski, 2011). Once a felon’s sentence was completed, and the individual was released, the state was obligated to provide for all aspects of supervision, including parole (Misczynski, 2011, p. 14). The state also maintained the responsibility for dealing with any parole violations and any who “violated the rules of their parole or committed…new crime[s]…could be arrested…and sent back to prison…” (Misczynski, 2011, p. 14). This, of course, meant returning the felon to state prison.

Corrections realignment specifically includes a group of felons considered less hard-core than their more violent counterparts. In particular, so-called ‘low-level’ felons whose offenses are classified as “non-violent, non-serious, and non-sexual” (and who have no previous convictions for sexual or violent offenses) are impacted by realignment (Brown, 2011, p. 23). In the opinion of the lawmakers who drafted the legislation, this group of felons “are…sufficiently manageable and low risk that they can be safely held in county jail and managed by county sheriffs” (Misczynski, 2011, p. 13). In other words, realignment transfers the complete responsibility for these felons to the counties. However, the state maintains responsibility for the felons viewed as more of a threat.

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The effects of corrections realignment in California were first felt in October 2011, with every low-level felon sentenced from that time on serving their sentence in county jail or under county supervision in the case of probation or parole (Fazzi, 2013). After October 1, 2011, no low-level felon was sent to state prison. This resulted in immediate and obvious changes in the state prison population in California during the first year of realignment and this impact is illustrated in Figure 4.

Overview of realignment funding. Unlike the majority of other states in the nation, California is only one of two states where individual counties are responsible for probation with no statewide guidelines or mandates (Flynn, 2013). This means that counties, prior to AB 109, were responsible for their own funding. Since each of the fifty-eight counties varies in size and has individual programs and policies in place, it is well established that the way counties sentence offenders to jail or how they supervise those released has an impact on the prison population. Ball (2012) analyzed a ten-year average of county data from Alameda County and San Bernardino County, which have similar-sized populations and reported violent and property crimes. The study concluded that both counties are part of the same state, governed by the same penal code and state judicial system, yet ten-year average of prison usage for that time show two radically different outcomes: San Bernardino’s prison population was more than twice as high, on average, as Alameda’s, and it sent an average of more than three times as many new felons to prison each year. (Ball, 2012, p.7)

The implication of that study is, if counties continue previous sentencing policies, some counties will require significantly higher levels of funding than others due to higher sentencing rates.

(Full document and references omitted for preview. Available via download)