Missed Opportunities in California Prison Reform Led to Overpopulation

California has reduced its prison population by over 50 percent in a little over a year by rerouting low-level offenders to county jails and encouraging alternatives to incarceration. Core sentencing and pretrial detention reform recommended by the ACLU was, however, attempted and failed by the 2012 state Legislature.

Drug sentencing reform to reduce overpopulation may involve a simple amendment to make drug possession of any kind for personal use a misdemeanor instead of a felony. This could keep low-risk offenders under community supervision and facilitate rehabilitation for parolees.

A similar formula has been recommended for the pretrial detention system.

SB 1506, a bill that would have down-graded personal drug charges, failed last year in the state Senate. Had it been enacted, the prison overpopulation crisis would look different. If SB 210, a measure amending pretrial detention practices to release based on risk and not solely on bail, passed, jail beds would be freed.

According to the latest census by the California Department of Corrections and Rehabilitation, 4,144 inmates (3.1% of the prison population) were incarcerated for a drug possession charge. It nears half the 9,600 inmates Governor Jerry Brown is required by federal order to release by December 31, 2013, or risk being held in contempt of the Supreme Court.

(For perspective, in 2009 well over 750,000 Americans were imprisoned nationally for drug possession alone.)

In addition, 70 percent of jail beds are occupied by pretrial detainees who cannot afford bail (roughly 50,000 inmates), regardless of the severity of their offense. While detailed official data is available on the less controversial pretrial release, the breakdown of pretrial detainees and their crimes is harder to hunt down.

Assuming at least a third of those charges are classified as non-sex, non-violent, and non-serious, those detainees can be conditionally released into community supervision through day reporting and/or electronic monitoring.

Ensuring “non-serious” have minimal contact with the “serious” while providing access to rehabilitation could improve the recidivism rate and open beds to siphon away more inmates from the still-bulging state prison facilities.

California already saw a huge reduction in marijuana crime after a 2008 amendment similar to SB 1506 downgraded possession to a misdemeanor, reducing marijuana incarcerations by half. At the end of 2012, 491 inmates were imprisoned in CA state prisons with charges related to the manufacture and sale of marijuana.

Aside from specific realignment reform, like SB 1506 and SB 210, how might Californian prisons respond to the complete legalization of cannabis?

After the Washington vote last November, two county prosecutors decided to retroactively dismiss 220 misdemeanor marijuana cases, asserting that there was “no point in continuing to seek criminal penalties for conduct that will be legal next month.”

There is no guarantee California prosecutors might reach similar conclusions. But, assuming the sentences of relevant detainees would expire soon after legalization, there are at least 500 beds to be regained from state prisons and many more in local jails. There may also be freed space when the expected number of offenders for the coming year drops.

A final estimate:

  • At least 4,000 state prison beds freed through replication of the 2008 cannabis amendment across all drug possession for personal use. Addiction would be treated as an illness and not as a willful crime, allowing offenders greater likelihood of recovery and sustained freedom.
  • At least 500 beds freed in state prison under hypothetical Californian cannabis legalization, all involving supply-chain felony marijuana charges.
  • At least 16,000 beds in county jails freed by applying the same “no-risk, low-risk, high-risk” assessment used in parole procedures to detainees awaiting trial. County jails are now the state’s overflow containers and emergency evacuation centers for prisons in dangerous conditions.

Today, Governor Jerry Brown, after a year of progress, faces another complication. Federal judges fight to avoid another constitutional emergency by ordering the evacuation of all inmates exposed to the fungal infection Valley Fever, in addition to the forced release of 9,600 inmates.

The governor could succeed in his recently announced plan to further reduce the state prison population, but the complicated situation may have been eased if past legislative proposals were enacted.

Photo Credit: Laura Sullivan / NPR