federalism, prisoner rights, and realignment in California.

One of the small pleasures of each day is when the Stateline email comes through. Stateline is a round-up of state-focused news from the Pew Center on the States. I’ve been following correction realignment in California since the SCOTUS ordered a reduction to the state’s prison population in 2011. Realignment is a strange and captivating expression of the inconsistent dynamics of contemporary federalism. Today a story came through on the perceived outcomes of realignment.

Monica Almeida/The New York Times

If you aren’t familiar with realignment: California had too many bodies in its massive prison system. In Brown v. Plata (2011) the Court found that prison overcrowding was in violation of incarcerated peoples’ constitutional protections against “cruel and unusual punishment.” The Court ordered California to reduce its prison population. Rather than release a large number of non-violent offenders, California reconfigured its criminal justice system to send lesser offenders- as the Times says, those who committed “nonviolent, nonserious and nonsexual offenses“- to county jails.

Today’s story from the San Francisco Chronicle begins with a significant caveat- there isn’t really much quantitative data, other than that the population numbers in state institutions are slowly going down, with scant changes to the overall population of the system (go here for weekly population figures). It’s worth noting that the Chronicle says the state is spending $6 billion dollars to alleviate the local strains of realignment, a high number given that its corrections budget is $9 billion dollars. I am guessing that the $6 billion includes preexisting state allocations to local jails, because otherwise is would make more fiscal sense to build more prisons.

There are some assumptions worth unpacking:

1. County jails provide more humane conditions.

A guiding assumption of realignment conflates reducing the prison population with a less “cruel and unusual punishment.” While the jails are arguably less crowded (the story shows jails having to undertake expansion projects), jails are generally absent the kind of programing and resources present in state correctional institutions. Counting local jails as equal to prisons, realignment does not account for the differences in the professionalization of jail and prison staff. While its up for debate whether  those differences are for good or ill, realignment does place the burden of humane punishment on population numbers. That’s a very low bar.

2. Devolution is good for local governments.

Brown said the different ways counties approach realignment is part of the beauty of returning control to local government.

“Some people want to see more alternative sanctions and rehabilitation programs, and in some areas that are more conservative, they like a more ‘lock ’em up’ philosophy,” Brown said. “Realignment is based on the idea of more local autonomy. … It’s not one size fits all.”

This was my favorite quote from the piece, because a federal intervention has led the state to local autonomy. This is interesting to me for a couple of reasons. On the one hand, as Brown says, it can promote community corrections and rehabilitation in counties that what it. That does sound good!

But, on the other hand, it allows conservative areas opportunities for more punitive sanctions. That’s frightening to me. While I wouldn’t like to see more people in state prisons, the whole point of Brown v. Plata is that prisoners in state institutions have the protection of federal oversight. Those in county jails have much less access to the lobbying mechanisms that make cases like Brown v. Plata possible in the first place. Scattered across the state, it seems to me that it would be more difficult to have abuses remedied in jails across the state, and I would expect abuses to come with a massive influx in jail populations, if anything because that would lead to overcrowding and poorly trained new staff.

I would like to know more about how the money is being distributed to the counties. As the story notes, there is a lot of variability in how the realignment funds are spent in the state’s 58 counties. Variability raises some red flags, because it implies inconsistent standards.

3. Imprisonment in California state institutions curbs crime.

Republican critics are saying that realignment is leading to an uptick in crime. It’s funny to me that there are Republican critics. You’d think they would be excited for devolution, which was an ideal advanced by those two paragons of California Republicanism, Richard Nixon and Ronald Reagan. But I digress. The critics of realignment believe that California’s state prison system was doing an effective job of controlling crime. We know that states with high rates of crime have high incarceration rates (see page 5 of this Pew study). We also know that the experience of being incarcerated reduces wage earnings, life expectancy, social mobility and increases one’s chances to return to prison.

Interestingly, no critics from the left were cited. As Ruth Wilson Gilmore has written,

What California needs is a true “realignment” (Governor Jerry Brown’s buzzword for reworking the state budget) of the prison system—away from mass incarceration and toward the many alternatives that are less expensive and more effective.


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