Prison Law Blog

Sara Mayeux

“Prison Without Walls” and the Special Case of California

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The Atlantic has an interesting article called “Prison Without Walls,”* on supervised release programs like parole and probation, and the rise of GPS tracking and other ways of keeping track of “prisoners on the outside” — what Graeme Wood calls, in the article, “Panopticon justice.” As a California-based observer of prison law and policy, I only have one quibble with the article. Wood describes his subject as follows:

An underappreciated fact of our penitentiary system is that of all Americans “serving time” at any given moment, only a third are actually behind bars. The rest—some 5 million of them—are circulating among the free on conditional supervised release either as parolees, who are freed from prison before their sentences conclude, or as probationers, who walk free in lieu of jail time. These prisoners-on-the-outside have in fact outnumbered the incarcerated for decades.

This traditional definition of parolees — men and women “freed from prison before their sentences conclude” — is not accurate as applied to California, the nation’s largest prison system. While California does have a small population of prisoners sentenced to variable-to-life terms and thus theoretically eligible for parole in the sense of early release, California also uses its parole system to supervise the 95% of its prisoners who serve determinate sentences. From 1979 through this past January, every determinately sentenced offender in California faced a mandatory post-release parole supervision period of up to 3 years; as of January 2010, about 85% do, and even those not on full parole can still be kept on “banked parole,” meaning they can be searched without a warrant at any time. (I summarized California parole, and linked to some helpful overviews of the system, in a post back in January. Another good overview was recently published by the Bay Citizen. In light of the widespread confusion, I’ve also asked a couple of times if California shouldn’t change the name of parole supervision altogether.)

California’s distinctive approach to parole supervision is key to understanding the growth of the Golden State’s prison population over the past 30 years. Since 1979, California has kept more of its released prisoners under parole supervision than any other state, and has been quicker to return them to prison (even if only for a couple of months) for technical parole violations. Almost half of California’s prison population (60,000 to 70,000 out of about 160,000) are parole violators, who may be serving only a few months in prison before they revolve back out into the community. And California has another 120,000 or so parolees out in the state at any given time — 1/5 of the nation’s total number of parolees. Note, too, that a “technical parole violator” could be anything from someone who failed a drug test or forgot to update his address, to someone who is accused of committing a rape or murder: California has long used the parole violation process in lieu of criminal prosecution in a surprising number of cases involving serious criminal allegations. Parole violation proceedings provide far fewer procedural rights for the accused — including a much lower burden of proof — though also less transparency for victims and the community. (This complicated issue would merit a separate post, but this law review article is a good introduction and cites an estimate that about 13% of California’s administrative parole violations in 2000 were for serious criminal offenses including homicide and rape.)

California’s distinctive approach to parole supervision, combined with its determinate sentencing scheme, is also key to understanding why the Golden State’s parole system has been widely viewed as a failure both at facilitating prisoner reentry and at protecting public safety. Determinate sentencing means that the prison system cannot keep offenders one day past their judicially mandated term, and it also means that it cannot release them early (with the exception of a fixed ratio of good-time credits). Thus, California parole officers have very high caseloads filled with nonviolent offenders who would not be under any form of post-release supervision in any other state along with violent offenders who may not have been released in any other state. The extremes are more extreme. As put by an expert panel including parole and prisoner reentry guru Joan Petersilia (PDF link to report): “The upshot is that California’s parole system is so overburdened that parolees who represent a serious public safety risk are not watched closely enough, and those who wish to go straight cannot get the help they need.”

California is distinctive among the states in this respect, but because it’s such a large state, I think the distinction is important to note in any discussion of “prisoners on the outside.” Whatever the philosophical or legal objections to monitoring parolees who’ve been released before their full term is up, one might think they are even more salient with respect to men and women who have served their judicially imposed term yet still face a mandatory period of post-release supervision. Beyond the philosophical and legal, there are also practical reasons to worry since much social science research suggests that parole supervision of low-risk nonviolent offenders is counterproductive.

* By the way, Adam Serwer at The American Prospect had a similar article, “Beyond Bars,” back in December, which is also worth a read.

Written by sara

August 16, 2010 at 6:53 pm

2 Responses

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  1. […] its members’ every move. Even just in practical terms, it is a nightmare. This passage over at Prison Law Blog describes what has happened in California, a leader in keeping its criminals outside of prison: […]

  2. […] sacrificing public safety — mainly by fixing California’s absurdly broken and wasteful parole system, which resembles that of no other state in the […]

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