Commentary: The Promise of Realignment Dwarfed by Fear and Politics

After a morning of good discussions and reasoned discourse at last week’s realignment dialogue, Los Angeles District Attorney Steve Cooley became unhinged.  Mr. Cooley had actually been an innovator, someone who pushed for change in the charging of third strikes to avoid sending the pizza thieves and cheese bandits to prison for the rest of their lives.

Mr. Cooley has been an unabashed critic of realignment.  He has argued that we have the lowest crime rate in 60 years and the reason for it is that we have incarcerated so many bad people.

He argued that the state’s fiscal crisis is the tail wagging the dog here.  He pointed out that effective early release and alternative custody under Prop 36 (drug offense program) did not work.

He said we should define the success or failure of AB 109 by what happens with the crime rate.

He argued that determinate sentencing works well if we consider the appropriate factors and that, while he hopes that realignment will succeed, he believes it will be a disaster.

Calmer heads had prevailed earlier in the UC Davis conference, but unfortunately they had been the exception and not the rule.

The Sacramento Bee reports this morning that Governor Jerry Brown’s prison plan has been demagogued by both the left and the right.

While the paper never uses the term “demagogue,” they describe a GOP video that they believe could be a preview of future campaign ads attacking Governor Brown and Democrats in the coming years.

They describe: “Inmates in orange jumpsuits trudge across the screen against an ominous soundtrack. Gov. Jerry Brown appears in hazy black-and-white footage. Later, a tattooed skinhead and some shirtless thugs loom.”

“Every citizen should be preoccupied with their personal safety and the safety of their family members,” warns Assemblyman Jim Nielsen, a Republican, who the Bee reports is “advising people to lock their doors and keep a watchful eye around cars, garages, even barns.”

Democrats quickly lose their intestinal fortitude when accused of being soft on crime.  So Democrats are using the opportunity to ask for more funding.

“Nine big-city mayors, including Sacramento’s Kevin Johnson, are using Brown’s plan as an opportunity to ask for more funding. In a letter sent days after realignment began, they warned of a ‘brewing public safety crisis.’ Los Angeles Mayor Antonio Villaraigosa grabbed attention when he said his city must take 150 police officers off the streets to help supervise newly released state prisoners,” the Bee writes.

Unfortunately, when it comes to crime and punishment, the calmest voice in the room is the one that usually loses.  But it is the one we ought to listen to most.

On Wednesday, that calmest voice came from Matthew Cate, the head of California Department of Corrections and Rehabilitation.  For him, realignment was born out of necessity.

Forget for a moment the Plata Decision that mandates the state reduce prison population, and focus on the fact that California has a record number of inmates and is operating at 195% of capacity.

For Mr. Cate, “Building your way out of the problem [is] very difficult, although I think that can be part of the solution, long term.  That leaves looking at your population and asking if you have the right people in prison.”

The most important part of his discussion however, was the reasoned discussion of whom is impacted by this decision.

What most do not realize is that 47,000 in the state prison system are there for less than 90 days.

Mr. Cate argued that this is the most expensive part of the system, other than death row. This is the time when the new prisoner receives medical, mental and psychological reviews, examinations and evaluations.

He called this the most wasteful part of the process.  We do not hear about treatment for these people because the CDCR does not have them long enough to make a difference.  There’s no education.  There is no drug treatment.

Based on that information, the Governor’s perception was that we needed to address that part of the population first.

“Most of those people serving 90 days or less are in on parole violations,” Mr. Cate said.  This is why AB 109 now precludes going back to prison on a parole violation unless you actually commit a new crime.  Parole violators go to jail.

These are technical violations, not people going back to prison because they committed a new crime, but people going back to prison because they failed to adhere to terms of release.

This impacts another large population who are not particularly dangerous.  They are the drug offenders and other non-violent offenders, who spend a large amount of pre-sentence time in the county jail and have little time left to serve in prison once they are sentenced.

“The average time for those guys is about a year,” Mr. Cate said.  “That’s the genesis for realignment.”

Mr. Cate said that he still doesn’t believe that this would have happened wihtout both the Plata ruling and the fiscal crisis, but he believes that this is a reform process long in the making.

“It’s well known that we spend nearly twice as much on prisons as higher education,” he said.  “It’s an expensive proposition and we just can’t afford it.”

The package started, he said, as a way to end parole altogether.  Parole costs about a billion dollars per year.  California is one of the few states that places almost everyone on some sort of parole supervision.

Mr. Cate would conclude that the issue of prison crowding is not a joke.  While he does not agree with the Supreme Court ruling that the system embodies cruel and unusual punishment, he does agree that it is broken.

He said while other people can decide on other issues here, however, “I can say that the situation as I found it when I arrived back in 2008 was untenable.”

But the calm voice of Mr. Cate is lost in rhetoric and campaign attacks.  People like Steve Cooley continue to press a crisis where there really is none.  The people in the campaign ads are not the ones being let out of prison under AB 109.

And yet, Democratic officials are clearly running scared of their own shadows.  Sacramento County, for instance, voted to re-open a 275-bed jail immediately, in order to handle the new offenders who will be shifted from prison to the counties.

But Sacramento County misses the point entirely.

Writes a scathing Sacramento Bee editorial from midweek: “The most promising avenue for reducing jail population while maintaining public safety is to look closely at people who have been arrested and accused of a crime, but who are awaiting trial. In the past, jails were roughly evenly divided between pretrial detainees and people who had been convicted and sentenced to a jail term. Now, sentenced offenders are a shrinking minority – 40 percent – of the Sacramento County jail population.”

The Bee argues that the issue needs to be “Who, really, needs to be detained before trial, and who should be allowed to remain in the community while his or her case proceeds?”

Here is what Sacramento is spending money on: “In Sacramento County, 31 percent of the pretrial population has had no previous arrests, or only one arrest. Forty-three percent have had no prior convictions. Sixty-three percent were arrested for nonviolent property, drug or alcohol crimes. Most are local people and are not a flight risk.”

The Bee argues if those pretrial detainees would be managed more effectively it would eliminate the need to open the facility.

Nevertheless the Sacramento County committee recommended on Thursday that the county spend $6 million of its “realignment” dollars from the state to open the jail.

Civil Rights Attorney Jeff Kravitz argued that the Sacramento policy would be a “boondoggle” and bad public policy.

“Spending the $6 million like this is a boondoggle. It’s just wasting more taxpayer dollars down the road. The cost is more than just opening a jail. Why do you think the state wants to offload these inmates? There are long term costs,” said Mr. Kravitz.

Mr. Kravitz said he agrees with Chief Probation Officer Don Meyer, who believes more money should be allocated for inmate rehabilitation programs for inmates who have been convicted of non-serious, non-violent and non-sexual crimes.

“Our jails are overcrowded, largely with people who could be released – such as those now being arrested at Occupy Sacramento in Cesar Chavez Park. It is bad public policy in these lean times to squander public dollars when there are sensible, safe alternatives,” Mr. Kravitz added.

Public officials, out of fear, have completely missed the point of whom would be released from prison, as Mr. Cate was able to so clearly identify, and according to the point that the Bee makes about who is needlessly taking up space in jail.

Then there is the point that we have been making, which is that prosecutors need to exercise more discretion about what cases they prosecute and how they prosecute these cases.

This is the point that Sacramento Presiding Judge Steve White made on Wednesday at the realignment conference.  One of the key changes in realignment is that local counties previously had a blank check, they could prosecute cases and if they won those cases, it became the state’s obligation to pay for the incarceration.

Now the incarceration cost shifts, in part, to the counties and that will force prosecutors to have to be more selective.

Judge White said, if you believe in prosecutorial discretion, then you have to be willing to pay for it.

“If you’re going to be a county that sends many people to prison for life, then pay for it and don’t have those counties that are being much more cautious and careful and thoughtful about how they decide who should get three strikes and who should be sent for life – [don’t] have those pay for it,” he said.

If people are paying for their own prosecution and sentencing policies, then there might be a more thoughtful and reasoned approach.

That is what we have been arguing from the start.  Unfortunately, it is far easier to make the demagoguing points than the reasoned ones.

While the Bee makes the point, “Counties may choose to place offenders on home detention or impose a 10-day ‘flash’ incarceration for those who violate release terms. But the plan also encourages community rehabilitation that scholars consider crucial to breaking the cycle of incarceration.”

Assemblymember Nielson argues that the former governor and Democratic legislatures “should have addressed the problem years before by building more prison space and sending more inmates out of state.”

Assemblymember Nielsen admits he does not believe in rehabilitation.

“No matter what you do, the majority of inmates are not going to stop being criminals,” he said. “It’s too ingrained in their very being, their lifestyles.”

That is a pretty bleak view of humanity, and it flies in the face of the fact that, while California’s recidivism rate is an obscene 70%, it’s far higher than other states.  That suggests the problem may not be the nature of criminals, as Mr. Nielsen asserts, but rather the nature of our system.

As our Assemblymember Mariko Yamada put it, “Just like global warming, I think the data on recidivism is all too real and it’s real incontrovertible.  The evidence is there.”

“It’s incumbent upon those of us in policy positions to also rise to the occasion and address the issues with the political courage that’s going to be necessary to advance reform and to truly achieve some sense in the sentencing process,” the Assemblymember added.

She concluded: “If we do not look deeper into the causes of prison overcrowding – talking about the intersections of poverty, of race, of unemployment, disparities in health coverage, inaccessibility to transportation – just what it takes to live in a just society.  I think we’re really fooling ourselves and we will do a disservice to the future of our state… unless we address the core issues related to why we have prison overcrowding, then I don’t think we’ll actually solve the problems.”

The real question is whether the calmer voices of people like Mariko Yamada and Matthew Cate will prevail in a time of panic.

As former Sacramento County Sheriff John McGinness put it, if we are not careful we will re-create the same “emotional environment in which the public was very very prone to support three strikes.”

—David M. Greenwald reporting