D-Day Approaches for AB 109 and Realignment – No One Sure What It Means

The October 1 date is rapidly approaching. That is the date when AB 109 takes effect, the date that whole classes of low-level offenders get sent to local counties, where there is not the capacity to handle them, and no one knows exactly what that means.

On the other hand it may mean more of a strange world where defense attorneys seek prison rather than probation, knowing that their clients will simply be released, and DA’s stack the charges hoping to get enough to keep people in prison.

Illustrating the uncertainty is a recent op-ed by San Francisco Public Defender Jeff Adachi, who argued that the only thing certain about realignment is that is coming on October 1.

“Realignment – depending on who is describing it – is either the long-overdue dismantling of the state’s regressive prison system in favor of rehabilitation or an unbearable burden dropped on the broken, cash-strapped backs of California counties, leaving just as many people incarcerated,” Mr. Adachi writes.

What it means for the clients of public defenders, however, is unknown.

“Right now, the plan is terra incognita, an uncharted region where we’re likely to run into both friend and foe,” wrote Mr. Adachi.

Like many, he sees the placement of fewer low-level offenders in prison as a good thing.  Having more clients who suffer from addiction getting their cases resolved through treatment and Proposition 36 programs is a positive.

On the other hand, he warned, “It doesn’t take a crystal ball to see that realignment will also be a missed opportunity.  The plan will be hobbled without sentencing reform, with many clients such as second and third strikers and others subject to mandatory sentencing ineligible for release.”

One of the key questions with prison realignment is whether there will be funding for the kind of reform that Govenor Brown is promoting.

Last week the Governor vowed that he would get the funding to ensure there are sufficient resources for prison reform.

“The money will be available,” Governor Brown stated last week. He believes there will be more than “$5 billion to carry out the work of realignment as laid out in Assembly Bill 109. I’m going to do everything I can to enshrine this in a constitutional amendment.”

At the present time, however, counties have only been promised nine months of funding, and that will get them through the current year.

Yolo County’s Ed Prieto was among the sheriffs who opposed AB 109, believing that it would mean overcrowded jails and releases of criminals back into the county.

However, he also believes they could hire additional sheriff’s deputies if they get the proper funding.

Sheriff Prieto told News 10 last week, “We’ll put many of these individuals (on ankle bracelets) in home custody and monitor them with deputies.  Monitoring them doesn’t mean (checking on them) occasionally. We’re going to be visiting them at least once a week or perhaps twice a week.”

But while the Governor is saying that he will go to the voters if necessary, Sheriff Prieto is concerned that if they don’t secure funding, people are going to have to be released.

According to Jeff Adachi, “Currently, counties that send more people to prison will receive a larger bundle of state cash to keep their offenders locally. According to a recent Santa Clara School of Law study, 18 out of California’s 58 counties disproportionately send offenders to state prison.”

One of those counties is Yolo County, middle of the pack in crime rate, near the top in incarceration rate.

“This disparity has nothing to do with crime rates, but with dependency on state resources and the charging decisions of local prosecutors,” Mr. Adachi writes.

It means that Yolo County will get a lot more money than counties like San Francisco and Alameda, which Mr. Adachi said “have deliberately kept more offenders at the local level.”

The view on what will happen depends on one’s perspective.

Tracey Kaplan of the Mercury News yesterday wrote, “To trim its bulging prison population and cut costs, California is about to gamble on a strategy no other state has tried — unload the responsibility for punishing and rehabilitating thousands of nonviolent felons from the state prison system to local communities.”

“No matter how slowly the new strategy unfolds, it will ultimately put more low-level offenders on the streets sooner than they would be under the current rules, either because they are enrolled in rehabilitation programs outside the jail walls, or are serving shorter periods in jail or on post-release supervision,” the story continued.

“Still, the state has been quick to assure the public that switching low-risk convicts from prison blues to county jail jumpsuits will not jeopardize public safety,” Ms. Kaplan writes.  “Despite such assurances, California’s plan — which comes after the U.S. Supreme Court in May found that the state’s overcrowded prisons constitute cruel and unusual punishment — has touched off a fierce debate: Will changing how we punish low-level criminals like meth users and shoplifters make California more dangerous? Or might it actually make the state safer?”

Reformists hope that this will mean a surge in alternative strategies to incarceration.

“It’s the greatest opportunity California has had in decades to advance criminal-justice reform,” said Alex Busansky, president of the Oakland-based National Council on Crime and Delinquency. “The challenge is how to manage it so it’s a success. Without the resources and the training, crime could spike and the political pendulum could swing back the other way.”

In fact, law enforcement officials predict “a surge in property crimes such as shoplifting, burglary and ID theft, particularly in communities that have had to lay off police officers.”

While law enforcement officials fret over the release of prisoners, which has actually begun well before AB 109 implementation, the Mercury News points out, “Yet in a trend that confounds researchers, crime has continued to drop — and is now at 1960s levels nationwide and in California — despite the worst economic crisis since the Great Depression.”

It is trends like these that have many throwing up their hands, not knowing what the ultimate impact will be.

LA County District Attorney Steve Cooley, who ran and lost the election for Attorney General, is one believing that this plan will result in a public safety nightmare.

“We are going to go from the lowest crime rate in 60 years to the biggest spike in crime in our lifetime,” Mr. Cooley said. “On top of that it’s going to force more case settlements and the quality of prosecutions will decline.”

On the other hand, LA County Sheriff Lee Baca “believes his deputies can do a better job than the state when it comes to managing ‘low-level offenders.’ “

One article reports, “Specifically, Baca hopes to provide an education to felons referred to in the new law as the N3s – nonviolent, non-sexual and non-repeat offenders.  He points to programs like Father Greg Boyle’s Homeboy Industries in Los Angeles as proof that education and job skills can help criminals turn their lives around.”

“We have to look at what we are doing here differently,” Sheriff Baca said. “We have to see if education rather than business as usual will be what it takes to make this work.”

At the local level, there is a good deal of uncertainty.

As Yolo County’s Public Defender Tracie Olson told the Davis Enterprise, “”It’s building an incentive for people to get treatment and go back into the community.”

She added, “The old-fashioned way of sending people off to do time bankrupted everybody.”

But not everyone has a hopeful view on this.

Chief Deputy DA Jonathan Raven told the Enterprise: “Some of these convicted criminals, based on AB 109, will do limited or no jail time.  Our jail only has so many beds, so that means many who were serving local time will be let out to make space for the new prison population.”

Local law enforcement fears this means it will increase crime.

Davis Police Chief Landy Black told the Enterprise: “Admittedly, all these people would have come back to our community anyway.  But while they’re gone, they’re not creating victims in our communities. Now, they will have that opportunity unfettered.”

How this will all play out, frankly, no one will know until October 1, which is now less than a week away.

—David M. Greenwald reporting

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