Taking Prison Capacity Into Account in Sentencing

I have recently come across an interesting resource which, while dated (published in 1997) offers some clues about how other states, and countries, cope with overcrowding through sentencing strategies.

Sentencing Reform in Overcrowded Times, edited by Michael Tonry, offers a wealth of information on various countries and their sentencing laws. The international comparison shows the trend we already know well: the US has the largest number of prisoners per capita (see the numbers in the World Prison Population List, compiled by Ron Walmsley from King's College London), and has not emphasized, as other countries have, proportionality in sentencing and seeking non-custodial alternatives. The book has short chapters on every country, summarizing its sentencing rules, and pays particular attention to strategies for battling rising imprisonment rates. A non-obvious example is South Africa, who started worrying about overcrowding back in 1976, and made some subtle changes to its sentencing structure, leading to a decrease in overcrowding in general, and to the overrepresentation of Africans in particular (the book estimates that the abolition of Apartheid crimes was only partly responsible for this change).

The U.S. chapters of the book do not include California, which does not have, as we know, sentencing guidelines and commissions. They also tell us something else that we already know - invariably, the introduction of determinate sentencing led to an increase in prison population across the board, particularly when accompanied by Three Strikes laws. But they also tell us that in Minnesota, Oregon, Pennsylvania, and various other states, prison capacity is factored into the sentencing guidelines as a criterion to be weighed in by the judges. There are various forms in which prison capacity is taken into account: several sentencing reforms, taking place in the mid-1990s, added some non-custodial sentences, and in some cases curtailed prisoners of the non-violent kind when scarce prison room was needed to house violent offenders. These strategies are not consensual; as Jeffrey Ulmer shows in his book Social Worlds of Sentencing, DA's officers are usually opposed to taking jail capacity into account, while judges embrace this consideration as a practical one.

Inversely, it is interesting to find out that changes in the opposite direction are also true; that is, enhancing prison capacity leads to an increase in imprisonment rates, as Stewart D'Alessio and Lisa Stolzenberg show in a paper published in Journal of Criminal Justice.

It is interesting to think whether the number of people sentenced to death in CA will increase with the construction of the New Death Row, and with the possible introduction of double-celling; also, when we consider alleviating overcrowding with new prison construction, we should take into account the increase in people sentenced to prison that, according to D'Alessio and Stolzenberg's findings, may follow such a move. It is also worth thinking of the sentencing commission bill, which we haven't heard about in quite a while, and on how a sentencing commission in CA might take prison capacity into account when fixing our broken sentencing policies.

What We're Left With

Our pals at Corrections One link today to a phenomenal and touching piece by Michael Cabral, currently serving time at Salinas State Prison, about the impact of the budget crisis on life within walls. Some of his sad words:

Now, six months later, the political solution to California’s budget crisis has eliminated all self-help programs behind the walls. First-time inmates are popping up regularly, impressionable youngsters with a year or so to serve. Without the support of any rehabilitative programs, prison for them will be less “Correction and Rehabilitation” and more “Corruption and Retaliation.”

Of course, a few of the “good guys” will try to lift their spirits, but an overwhelming number will be surrounded by company-seeking misery.

They’ll hear all about the system being out to get them, how their lives are ruined forever, how it would be pointless to parole and look for a decent job (or any job). Then, they’ll hear countless theories and strategies on how to become better, smarter criminals. Their environment will gradually break them down, and mold them into mindless — if not heartless — products of “the way life is” according to convict lore. Finally, they’ll rejoin society, never wanting to return to prison again, but knowing only how to do just that.

Read the rest of this moving piece here.

Schwarzenegger Gives Go-Ahead to New Death Row

Execution chamber phones photo courtesy cdcr.ca.gov

Yes, you have read correctly. As the Chron reports this morning, while Governor Schwarzenegger makes more cuts to the legislative budget, he also approves the plan to rebuild Death Row, a project with an estimated cost of $356 million dollars, with a suspected $39 million dollar overrun. Some more details:

Without double-celling, the auditor's report said, the new Death Row will be filled to capacity in 2014. But the report said double-celling raises concerns of safety and privacy, and that a survey found that only one other state, Oklahoma, double-cells condemned prisoners.

The budget that legislators sent to Schwarzenegger would have prohibited construction of the new Death Row until the state determined, in a court ruling or a formal opinion from the attorney general, that it would be allowed to double-cell Death Row inmates.

Another budget provision would have blocked the project until the state resolved a lawsuit over prison overcrowding. The suit is pending before a panel of three federal judges in San Francisco, who have ruled that overcrowding is the chief cause of poor health care in state prisons.

We have blogged about the Death Row project before. Conditions in Death Row have only recently reached constitutional threshold. Several states, citing costs, have abolished the death penalty or set moratoria on it. Quite an assortment of commentators, from Jonathan Simon to Republican lawmaker Tom Harman, have pointed out (for different reasons) the need to abolish the death penalty; the ACLU has pointed to its costs as only one of many reasons why abolition is long overdue. What can I say? To say I think pouring more money into this particular form of punishment, rather than doing away with it, is a bad decision, is the understatement of the year.

Schwarzenegger Signs Budget: No Further Cuts to CDCR

After making several changes and vetoes to the legislative proposal, Governor Schwarzenegger signed the California budget today. The Chron details the gubernatorial changes to the budget (millions taken away from education and welfare). Pay attention to what is missing: no further changes to the $1.2 billion unallocated cuts to the CDCR budget.

At this point, the question remains: How will the cuts be made? Stay tuned.

Awareness in Unexpected Places

Some coverage of the crisis - including an interview with yours truly - appears today on Esquire Magazine.

The Community Justice Center Celebrates 100 Days of Existence

Taking a break for a moment from the budget woes, the San Francisco Community Justice Center reports on its first 100 days.

In the first 100 days since the CJC opened, the program has been able to reduce delay for misdemeanor citations from 45 days to 2 days for the first court appearance. The court has taken most "out of custody" misdemeanor cases, and is increasing its felony cases. The court has successfully engaged people in treatment plans under our diversion laws immediately upon program entry. Of the 160 clients who have engaged in services, 60 accessed care under a justice mandate, 60 defendants voluntarily engaged in services and 40 ‘walked-in’ or were referred from other agencies. There is already a cost-savings story to tell. An estimate of jail bed savings of only 5 CJC defendants totals $23,000. In tracking 2 clients identified as high users of multiple systems (repeated hospital visits, emergency psychiatric treatment, police and fire in a 6 month period), the CJC’s centralized services coupled with court accountability reduced these costs by 50 percent.

While enjoying strong support from the Mayor and District Attorney, and some publicity due to the personal appearance of the SF Public Defender, the CJC has also been criticized during its inception. Recently, the court has not been on the news; some of this may be due to the fact that one of its more vocal critics, Supervisor Chris Daly, is currently occupied with other matters.

Skimping on Corrections? How They Do It in Texas

Prompted by our posts about the current dilemmas we face regarding the $1.2 billion cuts, and particularly Matthew Cate's recommendations, there's a thoughtful and interesting post this morning from our pals at Grits for Breakfast. Here's what Texas has tried to do to reduce its inmate population, and how well it has worked:

Texas pursued some of these same strategies in recent years to reduce its prison growth rate, a result achieved primarily by reducing the number of probation revocations. That was done through greater use of "progressive sanctions" and intermediate penalties for those who violate terms of supervision instead of sending them straight to prison. Secretary Cate's proposal would apply that tactic to both probation parole. Key to making it work, though, to judge by Texas' experience, will be boosting supervision resources, either by spending more money to supervise offenders in the community or reducing the length of supervision so officers are watching fewer people. That tactic will surely save money compared to sending the same folks to prison, but as a practical matter it will require additional investments to strengthen community supervision.

Adjusting the property crime thresholds is a strategy Texas has not yet pursued but which is probably justified here as much as in the Golden State. In Texas, theft reaches felony thresholds when "the value of the property stolen is $1,500 or more but less than $20,000," so the same tactic could be applied here and would also reduce the number of new prison entrants. The $1,500 level was set in 1993 when the "state jail felony" category was created (essentially a fourth degree felony), and it's never been adjusted for inflation.