.How California’s Prison Population Exploded

And why the costs of housing inmates skyrocketed at the same time.

Lindsey Bolar was living in Southern California, working as a short-order cook and raising two children. It was 1987, and the strains of being a new father, paired with a long-time heroin addiction, put him in a financial bind, so he rented out a room in his apartment. But his new roommate didn’t pay his rent one month, so Bolar forced him into his car and drove him to the bank. He told his roommate, “If you don’t get me my rent money, I’m going to beat your ass. I’m going to break your jaw.'” It was a strong-armed way of collecting what he was owed; the courts called it “kidnap for ransom.” Bolar was sentenced to seven years to life.

Inside Calipatria State Prison, Bolar grew angry and started dealing drugs. He used the money he made to pay for his defense lawyer. Anything left over went to support his two children and his heroin habit, which followed him behind bars. The drug dealing went on for a decade, eventually landing him a fourteen-month stay in solitary confinement and a transfer to Solano State Prison. He says the ten years of hustling behind bars left him tired: “When your family start dying, when your kids start growing up, when you start missing stuff, then reality hits you,” he said. “When you in that cell sometime by yourself, reality hits you, and you want to go home.”

To go home, Bolar knew he needed to demonstrate to the parole board that he had changed, so he enrolled in the Offender Mentor Certification Program, which trained him and fifty other inmates to be drug rehabilitation counselors. It was a yearlong program, and Bolar worked hard. “I gave up visits and studied these courses twelve hours a day, seven days a week, for a full year.” The commitment paid off. He passed his exit exam and received a drug counseling certification, which meant “If I came out and Kaiser hospital was hiring, I would be in a good position to get that job,” he said.

Bolar was released about a year ago — seventeen years after his minimum term expired. He was 62 years old, and had no job and no money, but thanks to that counseling certification, he’s now working for Options Recovery in Berkeley. “This training makes me feel like I can do anything I want,” Bolar boasted. “Even though I’ve got 42 years documented of criminal thinking and behavior, it’s possible that a man can change.”

Inmates like Bolar once was are called “lifers,” referring to the sentence of life with the chance of parole. They can stay in prison indefinitely, or, after a minimum number of years, a parole board can decide to let them out. It’s called an indeterminate sentence and though it’s now uncommon in California, it used to be the norm.

Before 1977, all California prisoners had an indeterminate sentence. They were given a range of time in which they would be imprisoned, with five years to life being a common sentence. To be freed, inmates had to prove to the parole board that they deserved it, which could mean enrolling in reform-oriented programs, learning a trade, or taking classes. The aim of indeterminate sentencing was to rehabilitate prisoners and, when they were ready to reenter society, free them.

Although the system had its flaws, it also had its successes. According to state statistics, just 15 percent of inmates released in 1977 returned to California prisons — an extraordinarily low recidivism rate in comparison to today. Nonetheless, in 1977, then-Governor Jerry Brown signed a law that completely overhauled the state’s sentencing system, switching the focus from rehabilitation to punishment.

Under the Determinate Sentencing Law that Brown signed, most inmates receive a fixed sentence, and are released from prison after a specified time period. As a result, most inmates no longer need to prove to a parole board — like Bolar did — that they are ready to reenter society, and so they don’t have to work for their freedom. Because of this, participation in reform-oriented prison programs has dropped substantially. “The general prison population doesn’t do shit no more,” Bolar noted. “No jobs, no classes, no therapeutics, no nothing … and when it’s time to go home they go home.”

In addition, funding for prison rehabilitation has been systemically cut from the California Department of Corrections’ budget. In the 1990s, the legislature went so far as to officially change the penal code to say that the purpose of prison was punishment — period. “They took rehabilitation out of it entirely,” noted UC Berkeley law professor Barry Krisberg. “So for the past three decades the system has been guided entirely by retribution. The main problem with the punitive approach is that the vast majority of prisoners are released.”

And today, released inmates are much less prepared for free society. They usually commit new crimes and end up back in prison. According to the most recent state statistics, an astounding 65 percent of released inmates now return to prison. In the past 25 years, that number has fluctuated between 60 and 80 percent.

At the same time, California voters and state political leaders have made it much more difficult for lifers to win their release. During the past three decades, California governors have routinely overturned parole-board decisions, forcing prisoners to spend even more time behind bars, thereby further diminishing the role of rehabilitation.

These so-called “tough-on-crime” policies also have had other dramatic impacts. Since 1977, the number of California prisoners has increased by more than 800 percent. In 1977, prison spending accounted for just 3 percent of California’s general budget. By 2010, it had jumped to 10 percent. Krisberg cites the shift more than three decades ago to determinate sentencing for the explosion of the state’s prison population, and the accompanying costs.

In short, tough-on-crime policies that favored punishment over rehabilitation have led to a substantial increase in the number of repeat offenders — people who do their time without having to learn any tangible job skills or rehabilitate themselves in any way, and are then released to society to commit more crimes. At the same time, the cash-strapped state has been forced to spend an increasing percentage of its scarce funds on warehousing people — rather than on basic services, such as education.

It’s no wonder Brown has expressed regret for signing the Determinate Sentencing Law 35 years ago.

From the 1940s to the 1960s, California prisons were the envy of the nation. The system maintained a low recidivism rate; its wardens held advanced degrees in social work; many rehabilitation programs were mandatory, and the ones that weren’t enjoyed high enrollment numbers because inmates wanted to impress their parole boards. “California was the model of good correctional management and inmate programming,” said Stanford University law professor Joan Petersilia.

But the system also had its drawbacks, so much so that by the late 1970s, there was a strong bipartisan push to dismantle indeterminate sentencing entirely. Liberals thought it wasn’t transparent enough; one person might serve six months for dealing drugs and another could serve a lifetime for the same crime. Accusations of racial discrimination and favoritism flooded the courts.

Conservatives, meanwhile, attacked indeterminate sentencing, believing it produced lenient sentences. There also were accusations that the state released inmates for political and social reasons. This sparked the “truth in sentencing” movement; that is, the sentence you get in the courtroom should be the sentence you serve.

State leaders, as a result, decided to “reform” the system. While the most violent offenders — killers, rapists, and kidnappers — would still have indeterminate sentences, the majority of inmates would now face determinate sentencing. Under the latter, a judge chooses from three sentences: high, medium, and low. For example, first-degree burglary carries a base sentence of two, four, or six years in prison. Once sentenced, the inmate essentially serves exactly that amount of time in prison — minus time off for good behavior, which is granted routinely.

The determinate sentencing law also led to a massive transformation of the state penal code. The legislature was put in charge of deciding which crimes carried which sentences. “Suddenly, in this very political environment, with everybody watching, with the media there, you have elected officials who don’t necessarily have training or background deciding [the scale] of penalties,” Krisberg explained. The change sparked an era of tough-on-crime politics in California. “It almost became a bidding war,” Krisberg added. “You know, ‘I want to show that I am tougher on crime than you, so if you think a rapist should get ten years, I think he should get twenty years.’ So there has been this natural escalation upwards.”

This upward escalation in penalties reflected what Krisberg calls a “moral panic about crime. Voters were concerned with it. People would get defeated for office because of it. We would have statewide elections that were strictly about criminal justice sentencing.”  

In this frenzy, between 1984 and 1991, California passed more than 1,000 crime bills. Virtually none of them reduced sentences, and many of them imposed so-called “sentence enhancements.” A sentence enhancement allows a judge to tack time onto a sentence for a number of reasons. “So you could have burglary, which has a base sentence of five years,” explained Robert Weisberg, the director of Stanford’s Criminal Justice Center, “you could add a number of years onto that sentence for the use of a gun, the particular time of day the crime was performed, a list of priors.”

There are now more than one hundred enhancements written into California’s penal code, and they have greatly increased prison terms across the board. But as people serve longer and longer prison stints, they also have less and less to do behind bars.

In the last two years alone, the state has slashed rehabilitation-oriented programs by $250 million, according to the California Department of Corrections. And that comes after a thirty-year divestment in prison rehabilitation. “What’s happening is they taking gangbangers off the streets,” said Bolar, who spent close to three decades in California prisons. “They putting them in a prison cell, but that’s it! When they leave, they go right back to where they came from. They go right back to that house that’s on fire. And if you think they ain’t going to get burnt, you crazy.”

Lifers like Bolar have much different prison experiences. Because of their indeterminate sentences, they need to work for their freedom, so they see prison psychiatrists, enroll in classes, and learn a trade — a self-imposed system of rehabilitation that seems to work. In contrast to California’s high recidivism rate for most inmates, released lifers have only a 1 to 3 percent chance of returning to prison, and almost never for another violent crime, according to state statistics. Of the roughly 1,000 murderers who have been paroled over the past two decades, only 13 have re-offended, and the worst of those 13 crimes was burglary.

Bolar says lifers are forced to be model inmates, and because of tough-on-crime policies, they have to be if they want to get out. “To get a parole in California,” explained UC Berkeley criminal justice expert Krisberg, “you have to demonstrate so much participation in programs, you have to have so much going for you, that to be released you practically need to be a saint.”

And even that doesn’t guarantee release. In 2011, just 450 of the roughly 10,000 eligible lifers in California were released — that’s less than 5 percent. In 2010, it was 6 percent, and throughout the 1990s and the early 2000s, less than 1 percent of lifers won their freedom. “Life in California has come to mean life; you die in prison,” Krisberg said. “There’s all of these prisoners that are in the last stages of life; they can’t even get out of their beds. They’re in no condition to cause any harm, but we still don’t want to release them.”

JB Wells was one of the lifers who got stuck in California’s prison system. In 1978, Wells was working at Stanford’s radiology film library. He had a well-paying job and a nice home — things were stable. But it all came crashing down when, one day, he unintentionally killed someone — he wouldn’t tell me more than that. He was sentenced to fifteen years to life for second-degree murder and sent to San Quentin.

But Wells said his transition to prison was “pretty smooth.” He participated in a number of therapeutic programs, joined a Vietnam vets group, kicked a steady drug habit, and held two high-level prison jobs. He also took advantage of his leisure time: “I became a published author. I’ve been in famous plays, I played the part of Lucky in Waiting for Godot, I played the part of John Brown in John Brown’s Body, and I just had a really, really fabulous prison experience.”

Wells was eligible for release in July of 1990. He knew that no one was being freed at the time, but he thought he might be an exception. He was wrong. For 21 years, Wells was denied parole, each time for the same reason. “They would always cite the gravity of the offense, the heinousness of the crime.” Wells said the parole board “never mentioned anything about public safety.”

Until 2008, California parole boards were allowed to deny release based purely on the nature of the crime. A 2010 Stanford study of parole-hearing transcripts found that for much of the past thirty years, parole boards labeled nearly all offenses “heinous, vicious, or cruel.” To many, this made sense, but it also meant that countless inmates were kept locked up.

Routine denial of parole also blurred the lines between inmates who had committed lesser offenses and the state’s most heinous criminals who were sentenced to death or life without the possibility of parole. Life with parole is supposed to be reserved for people that are considered “fixable.” The minimum term limit is designed to punish, and then the idea is to rehabilitate and release. “The penal code says very clearly that if you have a life sentence, you should be paroled at the first hearing,” Krisberg said. “Only if [there’s] something dangerous in your background should you stay in prison.”

In 2008, the California Supreme Court ruled that a parole board could no longer use a lifer’s original offense alone to deny parole. The court decided that it was unfair to punish prisoners indefinitely for something they could no longer change. In the wake of the decision, JB Wells was released a year ago — 21 years past his minimum parole date, at the age of 68. “I’m just so grateful to still be alive, to have hair on my head and teeth in my mouth,” Wells said, holding back tears.

The Supreme Court’s decision freed many lifers, but its effects were mitigated by Proposition 9, an equally momentous amendment to the state constitution known as Marsy’s Law. Approved by California voters in 2008, Marsy’s Law became the nation’s strongest “victims’ bill of rights.” The law allows crime victims to speak at parole board hearings. Although this isn’t a frequent occurrence, when victims do speak at hearings the odds of release drop by half, according to a 2011 academic paper, Life in Limbo, coauthored by Weisberg of the Stanford Criminal Justice Center.

Marsy’s Law has also greatly increased lifers’ terms in another way. When denied parole, lifers used to be able to apply again the next year, so the window of time for freedom was never too long. But under Marsy’s Law, inmates denied parole have to wait at least three years until their next hearing. As a result, the incidence of three-to-five-year deferrals has doubled since 2008. Also, for the first time in California’s history, thousands of lifers have received seven-to-fifteen-year deferrals.

That’s because Marsy’s Law also can transform any disciplinary infraction into an additional five to fifteen years in prison. Krisberg said that because California prisons are so crowded, it’s become nearly impossible for inmates to stay out of trouble. “I mean in the course of a day or a week, you are pretty likely to defend your life, to get into scuffles with people. And if you’re a lifer, that’s going to lead to more time added onto your sentence.”

The biggest roadblock to freedom for lifers, though, may be Proposition 89. Passed in 1988, it made California one of only four states to allow governors to overturn parole-board decisions. So if someone were lucky enough to be found suitable for release by the board, the governor could — and typically would — override the decision, keeping that person behind bars.

In the past twelve years, California governors have reversed 60 to 98 percent of parole board decisions, according to state data. (In his latest term, Brown has only reversed 20 percent, but because of Marsy’s Law, only around 5 percent of eligible lifers have been freed on his watch.) “The politics of this is that if you are the governor and you release somebody, and that person commits a crime, it’s going to be thrown in your face in the next election,” Krisberg explained.

He recalled the iconic 1988 presidential campaign, when supporters of GOP presidential candidate George H.W. Bush ran ads against Democratic challenger Michael Dukakis, after the Massachusetts governor had presided over a weekend furlough of Willie Horton, a convicted murderer. While free, Horton raped a woman after pistol-whipping, knifing, binding, and gagging her fiancé. The ads effectively killed Dukakis’ presidential bid and changed the politics of criminal justice nationwide. “A lot of governors saw that and said, “That’s not going to happen on my watch,'” Krisberg said. “It became irresistible for governors to not parole anyone.” As a result, tens of thousands of inmates have remained incarcerated far past their minimum terms.

Tony Cyprien was one of them. Since the age of thirteen, Cyprien hadn’t seen a solid year of freedom. After three years in youth lock-ups, Cyprien’s mother suddenly died when he was sixteen and he met his father for the first time at the funeral. He was essentially on his own, but he found kinship in the notorious Crips gang. They became his family, and the most common way he showed his love was through violence. “I was always feeling anger,” Cyprien remembered. “Either because something happened to me, or on behalf of one of my homies. I was always out for revenge, always ready to ride.”

At seventeen, Cyprien shot and killed a rival gang member. It was a harsh crime and he received a harsh sentence — 25 years to life, to be served at Solano State Prison. “I didn’t think about the concept of freedom,” Cyprien remembered. “I just accepted that this could be the rest of my life — walking yards, talking to other men.”

During his time at Solano, Cyprien saw the effects of determinate sentencing and the revolving door of reoffenders. “Because they had no incentive to change, people would fall back into their old ways of thinking,” he said. “Prisoners would leave thinking, ‘Man, I figured out what I did wrong, I should have zigged when I zagged. I ain’t going to get busted the next time.’ But they’d keep coming back to the pen, in and out, in and out, because they never learned about themselves.” But as a lifer, Cyprien knew he had to learn about himself. To get out, he had to completely transform. He attended self-help and religious groups, anger management classes, and became a certified welder. “They call them ‘tools to work with,'” he said, “and I picked up as many tools as I could to survive in this free world.”

Cyprien made so much progress that he was granted parole in 2009 at his first hearing — an almost unheard-of feat. He was over forty, and overjoyed. But before he could be freed, then-Governor Arnold Schwarzenegger stepped in and reversed the parole board’s decision. Cyprien was heartbroken, and he stayed in prison another year.

In 2010, Cyprien applied for parole again. This time he had all of his cards lined up. After being released he was going to live with his wife. He had contacted potential employers in the Bay Area. And he had a spot pending in an Oakland re-entry program. The parole board recognized all of this, finding him suitable for release once again. But just like the previous year, Schwarzenegger overturned the decision.

In 2011, Cyprien took a different approach. He filed a writ of habeas corpus with the courts, claiming wrongful detention. It was a costly legal battle, financed by his wife, but it eventually freed him last fall. “I just wanted to get out of there as fast as I could,” Cyprien remembered. “Before someone said, ‘Nah man, we made a mistake.”

In a 2009 interview with the Los Angeles Times, then-Attorney General Jerry Brown acknowledged the problems with California’s criminal justice system, and the failings of determinate sentencing: “If a prisoner knows he’s going to spend a determined amount of time for a crime, it may create a deterrent. But then once in prison, there’s no incentive to do work programs, to improve yourself — no incentive that you can get out earlier. That’s bad. That’s very bad. … I think the whole prison system needs to be changed.”

A few times, Brown has hinted at a return to indeterminate sentencing. And he isn’t the only politician who feels this way. Over the past three decades, state lawmakers have introduced nine separate pieces of legislation that could have changed sentencing laws. Each one considered a return to indeterminate sentencing.

It’s understandable why indeterminate sentencing is so appealing. A recent report by the California Department of Corrections showed that the state could save up to $600 million a year if it brought its recidivism rate back to pre-1977 levels. Rehabilitation is key. Recent research has shown that education-oriented programs in prison can reduce the odds of re-offending by 29 percent; job training can reduce it by 17 percent, and drug rehabilitation and addiction diversion programs can drop the recidivism rate by 31 percent. Because indeterminate sentencing provides the lure of an early release, it brings prisoners into these programs and consequently cuts recidivism.

Yet despite its attractiveness, indeterminate sentencing is unlikely to return to California anytime soon, Weisberg said. “Most people don’t want to return to an old-school indeterminate sentencing system,” he said. “No one wants to grant too much power to parole boards anymore.”

And, to a certain degree, that’s understandable. In the past, parole boards were regularly accused of discrimination, and in the present, they tend to keep inmates, namely lifers, well beyond their minimum terms. But as history has shown, criminal justice in California has never been static. Public opinion and policy can sway suddenly. “If you take a somewhat longer historical perspective, things can change rather dramatically and rather quickly,” Weisberg said. “Nothing is destined in this area; everything is in play if the political forces align properly.”


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