In 2011, 12,000 inmates at thirteen California state prisons went on a hunger strike. They protested a multitude of issues, including the deplorable conditions of solitary confinement, mistreatment from prison guards, and a lack of communal space. One of the strikers told The New York Times, “We are sick and tired of living like this and willing to die if that’s what it takes.”
The hunger strike came on the heels of a tumultuous decade for the California Department of Corrections and Rehabilitation. Since 2001, the US Supreme Court has declared the conditions of both the state’s prison health care system and its inmate living quarters to be unconstitutional. Conditions were so bad that they were likened to legalized torture.
Over the past thirty years, California also has dramatically slashed prison rehabilitation services. As a result, most released convicts are unprepared for living outside of prison, and so the state now has one of the highest recommitment rates in the country.
Two years ago, in order to combat this revolving door of offenders and to comply with a court order to reduce prison overcrowding, Governor Jerry Brown ushered in one of the biggest criminal justice reforms in California’s history — prison realignment.
Also known by its legislative name, AB 109, realignment makes counties, not the state, responsible for dealing with non-violent, non-serious offenders. Realignment also reformed the state’s harsh parole system and rigid sentencing laws, both of which are regularly cited as the primary factors — along with the lack of rehabilitation programs — for California’s high recidivism rate.
But after Brown signed AB 109, panic struck. Many counties, particularly in the southern half of the state, were afraid that the transfer of felons from the state prison system to counties would overwhelm their local criminal justice systems. In a press statement made just before realignment was enacted, Los Angeles County District Attorney Steve Cooley cautioned Californians to prepare for “the greatest spike in crime in our lifetime. … Get ready for this influx of criminals who are not under any effective control mechanism.” By contrast, many progressives saw hope in realignment. For decades, the California corrections system had been a disaster, and AB 109 promised a new, forward-thinking method for dealing with non-violent, non-serious offenders. At its best, it would completely change how the state handled low-level crime.
In reality, however, neither these hopes nor these fears have fully transpired.
While crime has spiked in some jurisdictions over the past two years, including in Oakland, crime rates statewide have continued their fifteen-year decline. The prison population has also been thinned by roughly 25,000 inmates, and California has saved hundreds of millions of dollars. Over the next decade, the corrections department predicts that savings will climb to $30 billion.
Last week, Brown argued that the state’s prison system deserves to be freed from federal oversight because of realignment. “We’ve gone from serious constitutional problems to one of the finest prison systems in the United States,” the governor told reporters.
However, despite significant savings generated by AB 109, realignment has also moved many problems to the local level. County prosecutors have continued to pursue maximum jail terms for low-level offenders, and, as a result, many counties now have the same overcrowding issues that long plagued the state prison system. Some of the counties, in turn, have responded by ramping up or embarking on a massive expansion of county jails in California.
By contrast, Alameda County has stood apart. In the first year that AB 109 was in effect, the county implemented one of the most progressive realignment plans in the state. There was no expansion of Santa Rita Jail; instead, community-based services were generously funded, and local courts backed off their pursuit of maximum jail terms for low-level offenders. The county’s Probation Department also implemented several innovative policies that reduced recidivism rates. “The success of Alameda County shows that corrections can best be achieved locally,” said ex-Chief Probation Officer David Muhammad.
However, the second year of realignment could be much different. Alameda County is set to receive $29 million in realignment funding from the state Corrections Department — more than three times what it got in 2011-2012. While community based-services will continue to receive substantial funds, $22 million of the county’s total allotment is set to go to the Sheriff’s Office and Probation Department, as well as to some programs provided by the District Attorney and Public Defender’s offices. Yet despite receiving such a large allocation of funds, there’s no clear plan for how the money will be distributed, nor have the agencies disclosed how they used last year’s realignment money. In addition, the Sheriff’s Office will absorb the lion’s share of the funds, and some activists contend that it appears the department plans to use the money to make up a budget gap rather than on realignment needs.
Meanwhile, many problems still have gone unsolved in Alameda County’s local justice system. The county continues to keep a large number of people locked up in jail before they receive a trial — only to release them after they’ve been convicted. At the same time, the Adult Probation Department continues to require that convicts undergo one of the longest probationary periods in the nation — despite compelling evidence that it is not beneficial.
In short, the state and the county’s criminal justice systems still have many challenges to overcome if realignment truly is to become a model for reform.
Realignment isn’t the first time that Jerry Brown radically changed California’s justice system. During his first term as governor 25 years ago, Brown made what he now calls a “big mistake” — he signed the Determinate Sentencing Law and ushered in an era of tough-on-crime policies in California.
The Determinate Sentencing Law affixed set prison terms to every crime. So, for example, a burglary conviction results automatically in a sentence of two, four, or six years in prison depending on the circumstances of the crime. “The idea is, do the crime, do the time,” explained Barry Krisberg, director of Research and Policy at UC Berkeley’s Earl Warren Institute on Law and Social Policy. “There’s no role for rehabilitation in it.”
After the Determinate Sentencing Law passed, the legislature took charge of assigning prison sentences for every offense. At the time, the state was in the grips of a “moral panic regarding crime,” Krisberg noted. But allowing politicians to assign term limits effectively “let the punishment genie out of the bottle,” he continued. Terms for virtually every offense increased, and numerous sentence enhancements were written into the penal code.
The legislature also slashed funding for prison rehabilitation. In the early 1990s, the legislature went so far as to officially change the penal code to say the purpose of imprisonment was punishment, period. These tough-on-crime policies then led to a substantial jump in the recidivism rate. In 1977, a relatively small percentage of released inmates returned to prison three years after being released. But for the past 25 years, the number has fluctuated between the 60 and 80 percent.
Under realignment, county courts aren’t constrained by the rigidness of determinate sentencing when dealing with low-level offenders. Instead, they can issue three types of sentences. The first is a straight jail term, with no supervision after release. The second is a split sentence, in which a portion of the term is spent in jail and another portion is spent on probation. The last option is straight probation with no jail time. AB 109 provides financial incentives to pursue the latter two options: The corrections department gives money to counties for every transferred inmate, but won’t cover the cost of a full jail term.
Still, most counties have dug into their own coffers in order to keep non-violent offenders behind bars. During the first six months of realignment, more than 70 percent of low-level criminals received maximum jail terms throughout the state, according to a report by the Chief Probation Officers of California. In Los Angeles County, Sheriff Lee Baca boasted to the Los Angeles Times that not one person has been released early from jail under realignment. “It’s far more expensive to have a jail bed as opposed to a residential treatment program, but the hardest thing is to shift the culture away from ‘Lock ’em up,'” San Francisco Public Defender Jeff Adachi told the daily legal trade journal California Lawyer last August.
The lock ’em up mentality also has generated an explosion in local jail construction. In the first year of realignment, 22 of the state’s 23 largest counties proposed allocating huge sums of AB 109 funds to jail expansion, according to a report by Californians United for a Responsible Budget. As of October 2012, more than 7,000 jail beds had been added statewide. In San Mateo County, a proposed $160 million project could increase the jail capacity by 10,000 inmates. In Los Angeles County, Sheriff Baca proposed a $1.4 billion jail construction project, and though it was recently taken off the table after public outcry, the threat of jail expansion remains. “Realignment promised this big social justice reform,” said Emily Harris, statewide coordinator for Californians United for a Responsible Budget. “But we’re just adopting the same failed policies of the state system.”
This all comes after three decade’s of growth in local corrections spending. Since 1982, counties and municipalities across the state have increased their corrections’ budgets by a total of more than 500 percent — from $3 billion to $19 billion.
But while county jails are growing throughout California, the inmate population at Alameda County’s Santa Rita Jail shrank. Over the past year, the county cut jail admissions by 494 inmates — more then any other jurisdiction in California. Local courts were able to accomplish this, in part, by embracing alternatives to full-term incarceration.
Between October 2011 and August 2012, 3,952 inmates were charged under the realignment statute. According to data from the Alameda County DA’s Office, roughly 70 percent served some jail time and were then released to probation, as opposed to serving full jail terms. In addition, the DA and the Public Defender’s Office agreed to lessen charges on 1,215 felons so they could be prosecuted under the realignment statute and avoid state prison. This helped the county cut the number of convicts sent to state prison by 39 percent.
Still, Alameda County has plenty of room for improvement. For example, it could further reduce its jail population and save a lot of money if it implemented a pre-trial release program. Between July and September of 2011, 88 percent of Alameda County’s jail inmates were in pre-trial status, meaning they were held in jail despite not having been convicted of a crime. The county’s pretrial lockup rate was 12 percent higher then the state average, and 22 percent higher then the national average, according to data compiled by the American Civil Liberties Union of Northern California.
Pre-trial inmates don’t necessarily pose a safety risk; many simply can’t afford to post bail. In a report titled “California at a Crossroads,” the ACLU accused this system of having “nothing to do with public safety. [It] has everything to do with wealth and poverty. … Defendants with little money or collateral to post for bail, but with stable employment, strong community ties and no history of violence or other risk-predictive factors may nonetheless be forced to remain for weeks or even months in jail. … People with money are able to buy their freedom while poor people cannot.”
Even the US Department of Justice is opposed to pre-trial detention. In 2011, US Attorney General Eric Holder noted, “Almost all of these [non-sentenced, pretrial] individuals could be released and supervised in their communities … without risk of endangering their fellow citizens or fleeing from justice.”
Alameda County Sheriff Greg Ahern has the power to implement an electronic monitoring or home detention program. Ahern estimates that the cost of housing an inmate and providing services is $124 a day. By contrast, pre-trial release programs can be as cheap as $2.50 per day. Yet despite the savings promised by pre-trial release programs, Sheriff Ahern has expressed little interest in implementing one. “We have well over a thousands beds available in county jail,” he said. “So that question would have to be answered well down the road.”
While realignment is playing out very differently across the state, sheriff’s departments have become increasingly powerful in local justice systems. Alameda County, for example, has resisted expanding its jails, but it has increased the Sheriff’s Office’s budget considerably.
During the 2011-2012 fiscal year, Alameda County received $9 million in AB 109 funding. Proportionally, the county then spent more money on community-based services than any other in the state. Adult Probation also received funding, enabling it to rehire twelve officers that had previously been laid off, and the Sheriff’s Office got enough money to properly manage its jails and holding facilities. In short, the funds were equally and adequately distributed.
In 2012-2013, Alameda County is set to receive $29 million. The county’s Community Corrections Partnership Executive Committee was charged with drafting budget proposals for realignment funds. The committee was headed by Chief Probation Officer Ladonna Harris, and consisted of Sheriff Ahern, Oakland Police Chief Howard Jordan, Alameda Police Chief Mike Noonan, District Attorney Nancy O’Malley, Public Defender Diane Bellas, Presiding Judge C. Don Clay, and Public Health Director Alex Briscoe.
Last week, after a lengthy and heated process, the county Board of Supervisors approved the Community Corrections Partnership’s year-two realignment plan. Of the $29 million in AB 109 funds, the board allocated at least $18 million to the Sheriff’s Office, according to Ahern. Roughly $4.4 million will be directed to Probation, as well as for services provided by the DA and Public Defender. The remaining $6.7 million of the $29 million will go to community-based services.
Although the plan earmarks a substantial amount of money for community-based services, it has been criticized for being overly vague. There is no itemized budget, for example, for how the Sheriff’s Office will spend its $18 million, especially considering the fact that Santa Rita Jail, which is operated by the Sheriff, is not overcrowded. “It’s unclear how this money is going to be spent, and how much will go for services versus how much will go for personnel,” said Junious Williams, chief executive officer of Urban Strategies Council. “It’s all a maze, and we don’t understand it all.”
In a November 2012 letter to the County Board of Supervisors, ACLU attorney Micaela Davis questioned the legality of Alameda County’s AB 109 allocations, writing that “given this lack of specificity, it’s impossible to know whether the County is using the funds for legitimate means, or whether it is allocating money to non-realignment related priorities in violation of the realignment statute.”
It should be noted, however, that Ahern has implemented a number of innovative re-entry and rehabilitation programs. In an interview, Ahern said the $18 million was going to provide inmate programming and services to an additional four hundred people over the next year. However, jail admissions in 2012 dropped by nearly 40 percent, so it seems unlikely that the Sheriff’s Office would see an additional four hundred inmates enter the jail in 2013.
As a result, some contend that the county appears to be using the AB 109 money to cover a budget deficit, rather than realignment. Last year, the county’s public safety agencies recorded an $18 million deficit, most of which was incurred by the Sheriff’s Office. “We’re essentially just signing over a blank check to the Sheriff,” said George Galvis, co-executive Director of Communities United for Youth Restorative Justice, “and it’s up to his discretion on how to spend it.”
Ahern didn’t answer my inquiries about how he spent the first year’s realignment money, nor did he break down how he will spend his second year realignment money. He simply responded, “We will work on that on a week-by-week basis.”
After the passage of the Determinate Sentencing Law in 1977, California adopted one of the nation’s harshest parole systems. The duration of parole supervision for convicts went from one year to three years, the penalty for breaking parole doubled, and the list of violations that had to be reported to the state parole commissioner increased substantially, according to an extensive study by Stanford University researchers. Also, while many states only required supervision for high-risk offenders, California put every freed inmate on parole.
As a result, between 1980 and 2010, the number of parole violations in the state increased roughly thirty-fold. The Stanford study, conducted between 2004 and 2007, found that more than one-third of the recorded parole violations were for noncriminal conduct, namely failing a drug test or missing an appointment. Of those who returned to prison for committing a new crime, nearly 40 percent were guilty of only minor infractions — mainly drug use and possession.
“The [parole] system that we had was catastrophic,” said Stanford law professor Robert Weisberg. “People were just cycling in and out. It not only maintained a very high number of people inside of prison, but it created a very chaotic inflow and outflow.”
Realignment took apart this dysfunctional system. Now, nearly all released felons are put on what’s called Post Release Community Supervision (PRCS), which is administered by county probation departments (the only inmates that are still monitored by state parole agents are term-to-life inmates, who typically committed murder, rape, or kidnapping). This shift has been huge, both philosophically and administratively, as county probation agencies tend to be more rehabilitation-oriented.
In Alameda County, nearly every released felon receives an Individual Achievement Plan (IAP). These are personally tailored re-entry plans that match released prisoners with necessary services. “They’re really centered on what each individual client needs, and then attaching services to their needs,” said Chief Probation Officer Ladonna Harris.
The IAPs also create an incentive for good behavior. If a parolee follows his plan, and doesn’t violate the terms of his release, he can be freed from probation after six months — a big difference from the three years of mandatory supervision under the state parole system. So far, 86 clients, or roughly 10 percent of probationers, have met this goal, Harris told me in a recent interview.
Also, while the state parole system routinely returned people to prison for minor infractions, Alameda County Probation handles violations much more leniently. “If we have a low risk person with a small violation, then their sanction might be something like ten hours of community service,” explained Harris. “We’re trying to let the clients understand that we’re not going to send them to jail for every single misstep.”
As of October, 894 people had completed their Post Release Community Supervision. Of that total, 301 had violated the terms of their release. While it’s too soon to draw a hard conclusion, these numbers are promising. In 2010, the state parole system sent more than 72 percent of parolees back to prison, according to the state Department of Corrections. In 2011-2012, Alameda County returned 33 percent of released inmates back to county jail — relatively few of whom went back for serious crimes. The county was able to achieve this despite numerous logistical hardships that occurred during the first year of realignment, and despite taking in many more high-risk cases.
While county probation departments have traditionally handled petty criminals convicted of misdemeanor crimes, under realignment they’re overseeing most released felons — including those convicted of crimes as serious as assault with a deadly weapon. “This is a slightly higher risk population, and a population that’s very different then what we were used to,” said ex-Probation Chief Muhammad. During his first year in office, Muhammad said that he was “getting people coming back with fifteen prior convictions, who spent multiple years in state prison, and who still had a significant drug abuse problem. These were difficult cases to manage.”
Many believe that probation can better handle this new population if it tightens one key policy. A little more than 70 percent of all adults on probation receive no formal supervision. Yet the county keeps convicts on probation for five years, which is one of the longest sentences in the nation. Most research shows that probation is only effective for the first eighteen months, after which it provides little to no benefit.
If the county adopted a three-year probationary period, and provided supervision in the first eighteen months, it would free up resources to more aggressively manage the high-risk offenders coming into the agency from realignment. Probation Chief Harris supports such a measure, however, she says there has been pushback from the District Attorney’s Association and local law enforcement leaders to the proposal.
The Alameda County Board of Supervisors was hesitant to pass the AB 109 funding plan last week, but it was being pressured by state politicians to allocate the money it had received. If it had postponed a decision any longer, the county could have lost funding in the future. Supervisor Richard Valle, who heads the board’s Public Protection Committee, said that he will continue to advocate for allocating a higher percentage of realignment funds to community-based services, but as far as this year’s plan goes, he said his “hands are tied.”
Supervisors Nate Miley and Keith Carson also expressed disappointment in the budgeting process, and both stated that, in the future, the Community Corrections Partnership would need to present the board with a line- item budget. Currently, a handful of criminal justice activists, lawyers, and professionals are mobilizing for the third year of realignment. They hope to persuade Alameda County to take a more preventative approach toward crime and punishment.
“AB 109 dollars can be spent anyway that the county deems is going to best serve the needs of community safety and justice,” said Galvis of Communities United for Youth Restorative Justice. “So that could be interpreted as supporting after school programs, employment training programs, all kinds of opportunities that we think will really achieve the goal of public safety and justice.”
Alameda County, and California at large, has an unprecedented opportunity to reform its criminal justice system. However, a comprehensive data system needs to be developed first, one that deciphers which practices work and which ones don’t. At this point, Alameda County doesn’t even know how it is spending AB 109 funds.
“We need to get serious about evidence-based practices, and we need to be able to make informed decisions about what’s working and what’s not working,” said Williams of Urban Strategies Council. “We can build out a county criminal justice system that makes sense, that protects public safety, that works with people who need support and helps to get them out of the criminal justice system, but I look at what we’re doing and I say, ‘This is not going to get us there.’ This is going to be another maladaptation of what we have done for the past thirty or forty years in criminal justice in this state.”
Correction: The original version of this story mistakenly stated that Alameda County Administrator Susan Muranishi is a member of the county’s Community Corrections Partnership Executive Committee. We also neglected to note that Alameda Police Chief Mike Noonan is a member of the committee.