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.) 

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Are “Certificates of Rehabilitation” the Solution to Prisoner Reentry?

Should more states join the seven that offer ex-prisoners the opportunity to earn “certificates of rehabilitation”? In a new paper, NYU law professor Joy Radice draws lessons from the 50-year history of these certificates in New York, the first state to introduce a program of this type. Here’s the abstract:

After years of swelling prison populations, the reentry into society of people with criminal convictions has become a central criminal justice issue. Scholars, advocates, judges, and lawmakers have repeatedly emphasized that, even after prison, punishment continues from severe civil penalties that are imposed by federal and state statutes on anyone with a conviction. To alleviate the impact of these punishments, they have increasingly endorsed state legislation that creates certificates of rehabilitation. Seven states offer these postconviction certificates, and six others proposed such legislation in 2011. Many look to New York’s statute as the best model because it is the oldest and most robust. Yet no article has examined New York’s experience with Certificates of Rehabilitation.

This Article draws lessons from the fifty-year history of New York’s Certificates of Rehabilitation to describe features of an ideal administrative mechanism that removes statutory barriers to reentry. I argue that a model Certificate of Rehabilitation statute will have a strong enforcement mechanism and clear directives for administering authorities. Successful implementation also requires committed administrative leadership and an effective means for making certificates accessible to the population they serve. Certificates of Rehabilitation do not erase a person’s criminal history, but they offer legal and social recognition that after a criminal conviction, a person deserves a second chance.

America’s Prison System as a System of “Permanent Exclusion”

Continuing what seems to be this week’s theme of LWOP here at the Prison Law Blog, here’s UCLA law professor Sharon Dolovich:

Of the 2.3 million people currently behind bars in the United States, only 41,000 – a mere 1.7% – are doing LWOP. Based on these numbers, one might well regard LWOP as the anomaly, and certainly not emblematic of the system as a whole. … I argue that it is LWOP that most effectively captures the central motivating aim of the contemporary American carceral system: the permanent exclusion from the shared social space of the people marked as prisoners. This exclusionist system has no real investment in successful reentry. … If this project is to be abandoned and its destructive effects reversed, the implicit assumption that individuals who have been subject to criminal punishment have thereby forfeited their status as fellow citizens and fellow human beings must be confronted and rejected.

That’s from the abstract to Dolovich’s new paper, “Creating the Permanent Prisoner,” available on SSRN. It’s from the compilation Life without Parole: America’s New Death Penalty?, forthcoming from NYU Press.

California Lifers, Though Eligible for Parole, Are More Likely to Die in Prison

That’s the conclusion that KALW reporter Nancy Mullane found when she ran the numbers. Kudos to Mullane for her dogged pursuit of this data, employing California’s Public Records Act. I thought I’d provide some additional context, mainly in the form of rounding up some links.

Caveat before I go on: It’s essential to keep in mind, when reading about criminal justice issues, that every state has different laws, policies, and terminology. This post is mainly about California, and in particular, about California prisoners serving life terms with the possibility of parole — which is a subset of the California prison population, mainly convicted of murder. For non-homicide crimes, California offenders are typically sentenced to determinate terms of a fixed number of years. They don’t have to go before the parole board because they’re automatically released, or “paroled,” when their term ends. The terminology is confusing, because the word “parole” is used to describe the release of both subsets of prisoners.

The fact is this: Because of the tough-on-crime turn of the 1980s and ’90s, many prisoners who were initially sentenced to life with the possibility of parole are now effectively serving LWOP or “death-in-prison” terms. It simply became a political near-impossibility to rubber-stamp the release of a convicted murderer. This bait-and-switch has happened in states across the country, though with different legal and administrative underpinnings in each state. In Virginia, parole-eligible inmates claim that the parole board summarily denies parole in every case. In Michigan, it was changes to the composition of the parole board that effectively made parole harder to earn.

In California, the change came in 1988. That year, Golden State voters transferred to the governor the final say on all parole decisions for murderers serving life terms.

450 California Inmates Wrongly Released? Not Really.

Last week the California newspapers were filled with headlines stating that CDCR had mistakenly released 450 inmates due to a computer glitch. Well, there was a computer glitch. But these prisoners would have been released anyway because they were serving determinate sentences — and under a determinate sentence, once your time’s served, legally you have to be released. The computer glitch caused the released prisoners to be mistakenly assigned to the wrong level of post-release parole supervision, not to be mistakenly released. That’s still a problem, of course, but the distinction is important. The CDCR Star has a round-up of corrections/clarifications here.

The confusion among headline writers is understandable since the California system uses the word “parole” to refer both to discretionary release for indeterminately sentenced offenders and to post-release supervision for determinately sentenced offenders. I’ve suggested before that I think resolving this terminological ambiguity could help clarify the public discussion on prison and parole policy in the Golden State.

Archbishop of Canterbury on “The Prisoner as Citizen”

Rowan Williams weighs in on Britain’s debate about inmate voting rights:

If we lose sight of the notion of the prisoner as citizen, any number of things follow from that, and indeed are following from that. … Thus issues around restoration, around responsibility, around developing concepts of empathy and mutuality are all part of what seems to me to be a reasonable working out of what it is to regard the prisoner as a citizen.

Web Resources: “Smart on Crime”

I don’t know if the current momentum for criminal justice reform will translate into legislative results, but hey, at least we’re getting some handy websites out of it. First there was Right on Crime, and now there’s Smart on Crime — a website compiling federal policy recommendations related to all facets of criminal justice reform, put together by a coalition of organizations ranging from the ACLU and NACDL to the Heritage Foundation and Cato Institute. The site is organized around issues, with each section including an overview of the problem, a list of reform recommendations, and contact info for leading experts on the subject, so it’s a handy resource even if you’re not the target audience of “the Administration and Congress.”

Anyway, the section on Prison Reform takes up some issues close to this blog’s heart — including the Prison Litigation Reform Act (which I’ve written about here). Here’s a summary of Smart on Crime’s recommendations on prison policy:

• Fully implement the Prison Rape Elimination Act
• Address the problems created by the Prison Litigation Reform Act
• Build transparency and accountability in corrections
• Reduce recidivism and increase effective rehabilitation
• Reduce the use of long-term isolation and design effective alternatives
• Design an evidence-based approach to criminal justice

John McWhorter on Prisoner Reentry and Unemployment

John McWhorter has an interesting piece over at The Root on prisoner reentry and black unemployment. McWhorter spotlights a few promising reentry/employment programs in Newark, N.J. McWhorter suggests that finding an employer willing to hire folks with criminal records is actually not the biggest hurdle for ex-prisoners — rather, it’s all the steps you have to go through before you can even think about going on an interview:

The immediate task at hand for an ex-offender is becoming able to work. Ex-cons often don’t have a Social Security number — and forget about a birth certificate. … Nine in 10 clients need detoxification or rehabilitation.

(BTW: Unlike Obama, Newark mayor Cory Booker has been known to voluntarily bring up the problem of mass incarceration in speeches where he could have gotten away with uplifting pablum. It’s probably no accident that Newark has some promising programs.)

“What’s Ahead for California’s Dysfunctional Prisons?”

The Crime Report has an interview with Matthew Cate, Secretary of the California Department of Corrections & Rehabilitation — worth reading in full for California wonks. Here’s an excerpt:

TCR: What are your two or three major accomplishments?

Cate: Reducing prison overcrowding while seeing crime rates in California continue to decline, is accomplishment number one. Number two is parole reform, where as I’ve mentioned, we’ve developed and used a risk assessment tool to identify and focus our resources on our most dangerous inmates, rather than just cycling our low risk inmates through our prisons over and over again for technical violations. This concept of basing our decisions on the science of who’s risky and who’s not is a major step forward in California.

TCR: What has been your biggest frustration?

Cate: The fact that corrections reform takes so long. It took two-and-a-half years to put in place the basic rudiments of parole reform. It was a highly politicized issue, and there were civil service and bureaucratic rules that had to be dealt with. The red tape is so unbelievable in California that it takes a long time to make anything happen even when everyone agrees it should be done.

Prison Higher Education Programs: An Unfunded Unmandate

A letter in today’s New York Times, from Vivian Nixon of the College and Community Fellowship, relates the Georgia prison strike to a broader problem — the dearth of funding for prison higher education programs:

Georgia inmates contend that access to educational opportunities beyond the G.E.D. will better prepare them for re-entry and decrease crime and recidivism. They’re not the only ones who know this to be true.

Reports released by the United States Education Department, the Justice Department and state correction departments all recognize the myriad benefits of educating prisoners. Since 1994, incarcerated students have been barred from receiving Pell grants despite the fact that prisoners received less than 1 percent of all Pell grant dollars awarded and that postsecondary education has proved to be the most successful and cost-effective way to reduce recidivism and increase public safety.

It’s worth keeping in mind exactly what happened when President Clinton signed the Violent Crime Control and Law Enforcement Act, which authorized almost $10 billion of federal grants for state prison construction while in the same stroke cutting off the $200 million of annual Pell grants that had been going to prisoners because God forbid we allocate 3/5 of 1 percent of the annual outlays of a relatively modest federal program to prisons! In 1994, there were over 350 higher education programs in prisons around the country, with about 40,000 inmates enrolled. (Note that there were also only about a million prisoners, compared with about 2 million now.) Within a year of the act’s passage, as well as copycat acts at the state level, there were fewer than a dozen. Congress and President Clinton collaborated to all but eliminate higher education programs in American prisons. Few federal statutes have so thoroughly and immediately achieved their aim.

It’s also worth keeping in mind the inanity of the rhetoric that got this measure passed. Senator Pell himself supported the use of his namesake grants by prisoners. But Kay Bailey Hutchison claimed that “Pell Grants are a great scam: rob a store, go to jail, and get your degree.” Let’s take a moment to think this through. Even if it were true, in 1994, that a person contemplating enrolling in college would find committing a robbery an easier way to do that than simply filling out an application to college, wouldn’t that have been a pretty glaring indicator that something had gone terribly awry, not with prison policy, but with the education system? But of course, Hutchison wasn’t really trading in facts and logic but in the general demonization of “criminals” that drove so much policymaking in the early 1990s.

The irony, of course, or maybe this was just the point all along, is that Hutchison was right: Hundreds of thousands of would-be college students have been denied access to higher education because of money spent on prisoners, but not because prisoners have been sucking up all the college grants. In many states prisons now receive far more government funding than colleges and universities do — even though all that government funding mostly goes to keeping prisoners idle. As California struggles to keep not just its once-legendary state university system but also the state itself afloat, it’s worth noting, as UCLA professor Chan Noriega recently calculated, that “California could send every last prisoner to a UC campus, covering all expenses, and still save nearly $2.3 billion per year.”