Why Is Realignment Failing?

Last week, the ACLU released its one year report on California’s historic prison realignment plan.  They argue, “The state has failed to adopt the kinds of reforms necessary to ensure its success and a lasting reduction both in the number of people behind bars and recidivism rates.”

“New polling data released by the ACLU today shows overwhelming public support for evidenced-based, smart-on-crime reforms like alternatives to incarceration for low-level, non-violent offenders and defendants charged with low-level crimes while they await trial,” the ACLU said in a press release. “But fearful of being labeled ‘soft on crime’ by the state’s law enforcement lobby that maintains a knee-jerk, over-incarceration view and is aggressively fighting any change to the failed public safety status quo, such reforms have so far failed to garner the support of state legislators.”

“The era in which policymakers lend undue credence to law enforcement fear-mongering must end,” said Allen Hopper, director of criminal justice and drug policy for the ACLU of California. “Californians have made very clear that they demand the politics of fear give way to the politics of fiscal responsibility and evidence-based solutions.”

According to the ACLU’s assessment, while the state’s prison population has decreased by nearly 25,000 during the past year, counties have increased their own jail capacity by more than 7,000 beds, and have spent tens of millions of dollars in state realignment dollars to expand jail capacity. Billions of additional dollars in the form of state lease-revenue bonds are designated for even more jail construction that would create an additional 10,000 beds. This despite the ACLU’s new polling data showing that 75 percent of state voters favor investing public money in more prevention and alternatives to jail for non-violent offenders.

“Voters want politicians who are smart on crime and are tired of wasting billions of taxpayer dollars every year locking up low-level, non-violent offenders at the expense of public health, college tuition, primary education and the overall health of the state,” said Hanna Dershowitz, criminal justice and drug policy advocate for the ACLU of California.

“While there are some exceptions, far too many counties are using pursuing business as usual in the realigned era,” said Margaret Dooley-Sammuli, senior policy advocate for the ACLU of California. “Too many counties are pushing ahead with jail expansion plans without first instituting better pre-trial release programs, which would provide an effective and safe way to reduce jail crowding at the county level.”

“Based on our close monitoring of the first year of implementation of realignment, the ACLU of California is deeply concerned about the state’s commitment to realignment’s success,” the report said.  “The state has failed to adopt modest sentencing reforms and other proposed improvements to the criminal justice system that are necessary to stem the tide of people into the state’s prisons and jails. Realignment alone will not be sufficient to address California’s incarceration crisis.”

The report argues that the state continues to lock up too many people for too long.

All realignment has done is move bodies from one facility to another.

“At its worst, realignment will reveal itself to be nothing more than a shell game, simply moving bodies out of California’s dangerously and unconstitutionally overcrowded prisons to local jail facilities. As the state prison population has fallen dramatically in the last year (by nearly 25,000), counties have increased their own jail capacity by more than 7,000 beds, spending tens of millions in state realignment dollars to expand jail capacity,” the ACLU reports.

They add: “On top of that, one billion dollars more in state lease-revenue bonds is now in the pipeline to build another 10,000 county jail beds. This explosion of jail expansion flies in the face of the express legislative intent of realignment to implement proven recidivism-reducing policies, including alternatives to incarceration.”

The ACLU report notes that some counties have attempted to implement new models.  For instance, in Sacramento County, “the Probation Department has utilized realignment funds to open a new day reporting center, where up to 600 reentering offenders will be referred to mental health, housing, and employment services.”

However, they argue, “Far too many counties are using an incarceration-only model and pursuing business as usual in the realigned era. A great many counties – San Mateo, for example – are pushing ahead with jail expansion plans without first instituting better pretrial release programs, which could provide an effective and safe means of alleviating the county’s overcrowding problems.”

The ACLU report adds, “Very few counties are making use of the alternative sanctions authorized and contemplated under realignment such as split sentencing with a mandatory supervision tail, electronic monitoring of sentenced defendants and other community supervision options for both pretrial and sentenced individuals.”

Yolo County is unfortunately a perfect illustration of this problem.

On September 23, the Daily Democrat published an article arguing that AB 109 has created new problems for Yolo County, where “the law has overcrowded Monroe Detention Center and forced authorities to release felons, creating a difficult situation for law enforcement.”

“I just don’t see how effective we can be with it after a while,” said Sheriff Ed Prieto.

Sheriff Prieto told the paper that the policy of shifting low-level felons from prison to counties has created a new burden on counties.  He argues that this has had some bad consequences.

He told the paper: “One of the issues is that we have a federal consent decree, which means that when we arrive at about 90 percent population, we have to start releasing inmates.”

“Currently, 165 of the county’s 485 beds are going to be committed to, as we call them, ‘AB 109 inmates,’ ” Sheriff Prieto said.  As a result, “we’re going to start arriving at 90 percent of population a lot more quickly,” he said.

What the article never mentioned and Sheriff Prieto did not acknowledge, the problem is that the county has not changed its policy.  It still charges crimes the way it had before.  It continues to treat pre-trial custodial situations similarly.

Last year, the Sacramento Bee had an editorial that looked at changing pretrial detention.

They wrote, speaking of Sacramento, though undoubtedly the principle should apply to all counties, “Only one-third of the county’s 4,100 jail inmates are serving a sentence imposed by a court. The rest are suspects who have been arrested and accused of a crime but who are awaiting trial.”

As we have previously noted, in Yolo County, a sizable portion of those individuals end up serving time in jail pre-trial, and then are given some sort of probation, often in conjunction with a jail sentence.

Wrote the Bee, “Sacramento Superior Court had a ‘pretrial program’ from 1983 to 2009 to determine which people were of low risk to commit a new crime or not appear in court and could be released pending trial. Low-risk defendants could go back to their jobs and families while awaiting trial – checking in or being monitored with an ankle bracelet rather than losing income and jobs.”

“The program was a casualty of underuse and budget cuts,” they wrote.

However, they believe reviving that program would shave 10 to 15 percent of the pretrial population, which in Sacramento County, at least, frees up 274 to 410 jail beds.

Has Yolo County attempted to revise its policies?

Overall, the ACLU hammers the state for missed opportunities, such as passing moderate pretrial reform.

“Nearly 70 percent of people in county jails statewide are being held pretrial,” they write.  “A significant portion of these individuals remain in jail waiting for their day in court, not because they present a risk to public safety, but because they cannot afford to pay bail.”

The legislature had a chance to change that with SB 210, introduced by Senator Loni Hancock, which would “have provided a framework by which pretrial detainees whom the court determines present a minimal risk to public safety could be released to community supervision while they await trail – instead of taking up jail space because they cannot afford bail.”

The ACLU writes, “This bill simply would have required judges to consider whether defendants were appropriate for community monitoring even if they could not afford bail. Jurisdictions across the county that have implemented similar reforms have been able to avoid or reduce jail overcrowding while protecting public safety and saving tax dollars.”

How many beds at Munroe would that measure have freed with minimal risk to the public?

There was also the Fair Drug Sentencing Laws, such as SB 1506 introduced by Senator Mark Leno, that would have added California to a list of 13 states which treat possession of drugs for personal use as a misdemeanor rather than a felony.  That one did not come close to passing, despite the fact that it would have saved the state and county governments billions of dollars according to the Legislative Analyst’s Office, while allowing more communities to preserve jail space for people who pose a risk to public safety.

“It also would have reduced recidivism by eliminating the lifetime barriers to employment, housing, and education that accompany felony convictions,” the ACLU reports.

The ACLU also reports, “The Governor and Legislature – in the name of county flexibility and autonomy – have refused to mandate data collection that would help counties implement evidence-based recidivism reducing policies, as they are urged to do in AB 109.”

They argue, “This leaves taxpayers continuing to foot the bill and suffer the public safety consequences of over-incarceration. These consequences include California’s dubious distinctions of having the second-highest recidivism rate in the nation, at 65.1 percent, and one of the country’s lowest per-student education spending rates.”

The ACLU in its assessment recommends several things be undertaken in the next year to help ensure realignment’s success:

“Our political leaders must reject the law enforcement lobby’s fear-mongering and insist upon programs and policies that maximize public safety return for taxpayer investment,” said Mr. Hopper. “We call on Sacramento to step up to the challenge and make the policy changes necessary to begin to fix our state’s broken system.”

—David M. Greenwald reporting

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