Columns

On May 23, 2011, the U.S. Supreme Court in Brown v. Plata, (www.law.cornell.edu/supct/html/09-1233.ZS.html) affirmed lower court rulings that ordered California to reduce its prison population to 137.5 percent, or to 109,805 from 143,436 prisoners within two years. (California’s prisons are designed to house a population of just under 80,000.)  

The decision was based on evidence that prisoners were being deprived of basic medical care caused by overcrowding. The Court noted, for example, that there were high vacancy rates for medical care (20 percent for surgeons) and medical health care (54.1 percent for psychiatrists). And the state had not budgeted for sufficient staff and, even if vacant staff positions were filled, there is not enough space for them. The Supreme Court ruled that the state had violated the Eighth Amendment to the U.S. Constitution, which prohibits the infliction of "cruel and unusual punishments."  

Governor Jerry Brown's response to prison overcrowding is to shift low-risk inmates from state-run prisons to counties as set forth in Assembly Bill 109 signed into law last month (www.aroundthecapitol.com/Bills/AB_109/20112012). But, of course, the legislature and counties must find the money to move inmates to county facilities, many of which are already overcrowded, to comply with the Supreme Court decision without putting criminals back on the street. AB 109 will be at best a short-term solution to California's overcrowded prison system.  

Why is the prison system overcrowded? California's tough-on-crime policies have led to the passage of hundreds of laws that increased prison terms. One of the most significant was the 1977 policy mandating that every prisoner leaving the system get paroled resulting in thousands of ex-convicts being sent back to jail each year for minor parole violations. Last year’s change in parole laws, which allows some non-violent offenders to avoid parole and others to avoid getting sent back to jail for minor violations, was a step in the right direction. 

In 1994, California passed the three-strikes law, which requires those convicted of any three felonies be sentenced to 25 years to life. There is also a two-strike provision, as well, which requires hose convicted of a second felony to receive a doubled sentence. As the 25-year-to-life inmates increase, California will be housing a disproportionate share of elderly inmates. 

California has a 70 percent recidivism rate. What is needed is a support network for inmates reentering society. Unfortunately, rehabilitation and drug treatment are severely underfunded.  

In 2000, Proposition 36 was passed by the voters that permanently changed state law to allow qualifying defendants convicted of non-violent drug possession offenses to receive a probationary sentence in lieu of incarceration. As a condition of probation defendants are required to participate in and complete a licensed and/or certified community drug treatment program. If the defendant fails to complete this program or violates any other term or condition of their probation, then probation can be revoked and the defendant may be required to serve an additional sentence which may include incarceration. Proposition 36 is not retroactive, meaning that defendants who had to attend unlicensed drug rehabs prior to Prop 36 are not afforded the opportunity to have their cases reheard in court. One UCLA study (http://articles.latimes.com/2007/apr/24/opinion/ed-prop3624) found that convicted drug users had become more likely to be arrested on new drug charges since the proposition took effect. 

AB 900, passed in 2000, provides authorization to build up to 40,000 state prison beds and up to 13,000 local jail beds in two phases. Assemblyman Todd Spitzer, R-Orange, the chairman of a state Assembly committee overseeing the state's prison construction efforts remarked about AB 900: "The department is a shambles. They couldn't build their way out of a paper bag. Everyone has a reason to be skeptical. Everyone is holding their breath, hoping that this time they're successful." Cearly, AB 900 was not the answer to prison reform. Otherwise, California would not have been a defendant in Brown v. Plata. 

Prison overcrowding has been a problem for years but the California legislature has lacked the political will to implement necessary reforms. Will California be forced to turn to private, for-profit prisons to help solve its overcrowding prison problem?  

Many believe that government programs -- social security for example -- would run more efficiently and cheaply by the private sector. This may or may not be true. However, recent research by the Arizona Department of Corrections (www.azcorrections.gov/adc/reports/ADC_FY2010_PerCapitaRep.pdf) indicates that this is not necessarily so for private, for-profit prisons. This research based on Arizona's own facts and figures shows that privately-operated prisons can cost more than state-run prisons, even though they often do not accept the sickest, costliest inmates. Arizona law stipulates that private prisons must create “cost savings,” but the research shows that inmates in private prisons cost as much as $1,600 more per year, while many cost about the same as they do in state-run prisons.  

Similarly, a University of Utah team reviewed years of research and concluded in a 2007 report (http://ucjc.law.utah.edu/wp-content/uploads/86.pdf) that “cost savings from privatizing prisons are not guaranteed and appear minimal.” 

For many years, private prisons have been a hot issue in California. While Texas and Florida have embraced privatization as a supplement to state-run institutions, California has resisted. In 2002, former Governor Gray Davis ended California's experiment with privately operated prisons, fulfilling his promise to the California Correctional Peace Officers Association (CCOA) that spent $2.3 million to help elect him to his first term. Davis' budget proposed closing five of California's nine private prisons almost immediately and phasing out the rest as their operating contracts expire. He cited budget concerns, saying that the state could save about $5 million by closing the minimum-security facilities. Prisons run by private companies was finally discontinued in 2007 after continued lobbying by the CCOA. 

California does use private, for-profit facilities for community corrections facilities (seven are in operation today) and various contracted services, including education, vocational training, and substance abuse treatment.  

Private prisons are making a subtle comeback in California. For example, as the prisons' population swelled to an all-time high in 2006, former Governor.Arnold Schwarzenegger declared a public safety emergency and then used his emergency powers to begin transferring more than 10,000 inmates to private prisons in other states. California now contracts with for-profit private prison companies to house up to 10,468 inmates in out-of-state facilities.  

Shortly after Schwarzenegger's declaration of a public safety emergency, the Reason Foundation (http://reason.org), a Los Angeles-based libertarian think-tank that promotes the privatization of government services, and the Howard Jarvis Taxpayers Association (www.hjta.org) issued the so called "Reason-HJTA Report (http://reason.org/files/private_prisons_california.pdf), which advocated sending 25,000 California inmates to out-of-state for-profit prisons, claiming that would save the state up to $1.8 billion over a five-year period. The Report purports to offer a solution to California’s prison overcrowding crisis.  

The cost savings touted in this Report were severely criticized by the Private Corrections Institute, a non-profit citizen watchdog group that opposes prison privatization: “The joint Reason-HJTA report is based on sources that are so plagued with conflicts of interest that the results would be laughable if they weren’t masquerading as credible research.” (www.privateci.org/private_pics/PCI%20press%20release%20re%20Reason%20report%202010%20%282%29.pdf),  

I believe that California will turn to private, for-profit prisons as the long-term solution to prison overcrowding and not necessarily for any purported cost savings, but because California may have no other choice. California cannot build new prisons and/or remodel/expand existing prisons fast enough to keep up with new inmates. Lacking the political will, California will likely take the easy way out by shipping the prisoners to private prisons. 

N.B.: In his State of the State address in January 2010, former Gov. Arnold Schwarzenegger said that California is spending 10 percent of its general fund on prisons and 7 percent on higher education. Isn’t this a case of misplaced priorities?