Realignment in California: The Basics, Plus How Counties Are Preparing

On October 1, California will start diverting low-level felony offenders and parole violators to county jail, rather than state prison, when a new law, known as “realignment,” goes into effect. The law was proposed by Gov. Jerry Brown as a way to bring the California prison system into compliance with the Supreme Court’s order to alleviate overcrowding, and was enacted by the Legislature in March as AB 109. I thought I’d run through a few basics of how the law will work and round up some recent news coverage from around the state. If you’re looking for a more comprehensive resource, the ACLU of Northern California has produced a helpful guide (PDF) to the law and how counties can plan for the changes.

The Mechanics

• How will AB 109 change California sentencing practices? As of October 1, the law transfers responsibility for punishing non-serious, non-violent, non-sex felony offenses to the county level, where misdemeanors are already handled. So rather than being sent to state prison, these low-level offenders will now be punished with a term in county jail or whatever alternative sanction the county comes up with. (For those familiar with the California Penal Code, generally we’re talking about felonies punishable by the “16 months/2 years/3 years” triad.) 
• How will AB 109 change California parole supervision? Previously, just about everyone released from a California prison had to serve a term of up to three years of “parole,” or supervision by a state parole agent. (As I’ve explained before, “parole” in California doesn’t necessarily mean “early release.”) AB 109 will gradually get rid of that system. First, as of October 1, it creates a new system of “post-release community supervision” for low-risk offenders, in which those released from prison after serving a term for a non-serious, non-violent, non-sex felony offense will be supervised by the county (either the county probation office or another agency designated by the county to take on this responsibility). State parole agents will still supervise more serious or higher-risk parolees, and anyone released onto parole supervision prior to October 1. In addition, after October 1, revocation sanctions will be served in county jail rather than state prison (whether for violating the terms of state parole or post-release community supervision). Then, in 2013, all post-release supervision will be devolved to a local responsibility — parolees will only go back to state prison if they’re convicted of new crimes. Incidentally, I like this new name of “post-release community supervision,” which I think will contribute to a more accurate public discussion of California criminal justice policy than the ambiguous term “parole.” Maybe someone in Sacramento has been reading my blog? 😉
• Does this mean my friend/brother/cousin/daughter/etc. in state prison might be transferred closer to home? No — realignment doesn’t involve sending any current state inmates back to county jail. It’s important to understand this point and correct misperceptions in your community, because some of the local papers are reporting on the law in a misleading way, such as this article headlined “County prepares for return of some prison inmates” — that’s not really what’s happening. That said, if you do have a friend/brother/cousin/daughter/etc. with an upcoming state prison release date, it’s possible that they may be supervised at the county level after release rather than by a state parole agent. And if you have a friend/brother/cousin/daughter/etc. currently out on parole, they’ll now wind up in county jail, rather than state prison, if they violate after October 1.

The Prognosis

• Does the law encourage alternatives to incarceration? Yes, indirectly. The idea behind realignment is not just to relocate low-level offenders to jail instead of prison, but also to trigger broader reforms and alternatives to incarceration at the local level. The county jails, collectively, wouldn’t have room to jail the numbers of low-level offenders they’ve historically been sending to state prison. Thus, AB 109 instructs counties to explore “a range of custodial and noncustodial responses” to crime. Each county is required to establish a “Local Community Corrections Partnership” including the probation chief, district attorney, public defender, presiding judge, police chief, and a public health or social services representative. This committee must develop a realignment plan, which must then be approved by its county’s Board of Supervisors and submitted to the state.
• How many offenders will be affected? Since the law is prospective-only, it’s too early to tell for sure; it’ll depend on how many offenders each county arrests, prosecutes, and convicts. Theoretically, counties could use realignment as a wake-up call to invest in preventive measures such as drug treatment and reentry services (although, given the current state of public finances, I doubt it), or they could expand the use of GPS monitoring, day reporting, and other alternatives to incarceration. By current estimates, though, counties are expected to see about 75,000 additional jail inmates over the next few years, as well as 26,500 low-risk released prisoners added to their county probation rolls who would previously have been supervised by state parole agents.
• Won’t this just transfer the state’s problems down to the counties? Much depends on local implementation. Yes, if counties respond to AB 109 simply by packing their jails, then the same problems of overcrowding, high recidivism, and human rights abuses will just be replicated locally. In fact, as the ACLU notes, “because jails were never designed for long-term detention, counties that respond to realignment by packing their jails are likely at even greater risk of costly lawsuits for conditions of confinement.” To avoid this outcome, the ACLU recommends that counties “adopt[] front-end solutions that reduce jail populations, rather than paying for expensive capital and operating costs to sustain an ever-larger jail population during a time of continued budget cuts.”

How Counties Are Preparing

The Wall Street Journal reported last week that county preparations for the changes have been “wildly uneven” so far. While the state is providing funding to the counties to beef up their jails and probation departments, some experts are concerned about the lack of state administrative support. Here’s a roundup of how a few counties across California are preparing:

Large Counties

• Fresno County: Fresno will use $8.8 million in state funds to open up new jail floors, hire additional probation officers, and expand its day-reporting center, among other changes. Officials are worried the funding won’t be enough and that existing county institutions won’t be able to cope with the new numbers.
• Los Angeles County: This’ll be the county to watch — it’s the largest jail system in the state by far (actually one of the largest in the world) and, like the state prison system, it’s long been plagued with overcrowding and litigation over human rights abuses. It looks like L.A. County may wind up outsourcing inmates to other counties if need be. After realignment, its average jail population is slated to grow by 8,300 inmates plus 9,800 would-be parolees.
• Santa Clara County: Home of Silicon Valley, Stanford University, and the city of San Jose, as well as your humble blogger, Santa Clara is slated to see 3,000 new inmates after realignment, plus about $13 million in state funds to cope with the influx. Rai Jayadev, a member of the county’s Community Corrections Committee, writes that he hopes realignment will spur the county to embrace a holistic, inclusive approach to genuine criminal justice reform: “One idea around reducing recividism is for ‘peer mentors’ to assist people returning to the county – residents who have walked down a similar road, have made their transformations, and can help returnees navigate the re-entry process, by connecting them with services and providing a measure of support from someone ‘who’s been there.'”

Small Counties

• Kern County: Already reeling from probation officer layoffs due to budget deficits, Kern County may rely on an automated phone system to check on probationers.
  
• Napa County: Officials don’t seem to have any specific plans in place yet, but the county is slated to receive $1 million from the state to handle an estimated additional 70 charges a year.
• Solano County: Sheriff Gary Stanton predicts he’ll have to release some jail inmates onto GPS monitoring and worries that the state’s promised funding may be inadequate, but is ultimately optimistic: “What we’re looking at is probably a very difficult first year, and then in the second and third years it should get a little better and then in about the fourth year I think we can probably turn the corner. We know we can’t do any worse than the state did with it, they set the bar pretty low.”

My Take

In theory, realignment has the potential to be very positive for California. It’s cheaper to send someone to county jail than to state prison, especially for a term of only a few months — you avoid a lot of transportation and intake costs — and ending the constant churning of new people in and out of the state prisons could also make the prisons themselves safer and more stable. Keeping offenders closer to home makes it easier for families to visit, and county officials are better placed than state bureaucrats to tailor programs to the needs and punishment philosophies of their community, often in partnership with local non-profits or social services providers that offenders may be able to stay connected with after release. Ideally, forcing counties to bear more of the cost of their own policing and prosecuting decisions will encourage more thoughtful decisions about how to allocate scarce law enforcement resources.

In practice, though, realignment also has lots of potential to go awry. California counties vary widely in how well funded and run their criminal justice institutions are. The smallest counties really don’t have the jail capacity to hold offenders for long stays, but I also doubt they have the capacity to develop robust alternative sanctions. And among the large counties, there’s a lot of variation in quality. Anecdotally, I’ve always heard that San Francisco defense lawyers try to keep their clients in county jail as long as possible to eat up time served and avoid state prison, whereas in Los Angeles, the horrendously overcrowded jails are actually worse than prison.

So, much will depend on how well the state follows through with funding and administrative support, and how well local leaders meet the challenge of handling their new responsibilities. I’d guess realignment’s fallout will vary widely county-by-county, just as everything else about California does. But I agree with Sheriff Stanton: the counties “can’t do any worse than the state did with it, they set the bar pretty low.”

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