Breaking California's Prison Habit

Sentencing Reform Key to 'Realignment'

In May, in Brown v. Plata, the U.S. Supreme Court spoke definitively: California must stop imprisoning so many people. The High Court concluded that California's prison system is so bloated that it poses extreme risks to prisoners and to staff, and that reducing the number of people in state prisons is the only way to end grossly inadequate health care and "needless suffering and death." The Court invoked the Constitution's ban on cruel and unusual punishment under the Eighth Amendment.

The Plata decision, 10 years in the making, has arrived at the apex of the most significant state budget crisis in decades. As legislators enact massive cuts to public education, healthcare and social services, the ACLU and criminal justice advocates across the state are calling attention to the need to cut wasteful spending within the prison system, and enact reforms that will cure California's incarceration crisis for good.

Solutions are within reach. California's extraordinarily harsh sentencing laws, including mandatory minimums, should come to an end. We should reduce the penalty for low-level nonviolent crimes – like petty theft or simple possession of drugs – from a felony to a misdemeanor, thus reserving felony sentencing for serious crimes. And we should stem California's appalling recidivism rate by investing in evidence-based programs, like drug treatment, that are proven effective in keeping people out of the system.

Imagine the costs and misery that could have been avoided for people like David Moss – a Berkeley playwright whose struggle with cocaine addiction put him behind bars no less than 14 times, all for nonviolent, low-level crimes. Moss was never offered drug treatment a single time, but managed to find his own way to a 12-month rehabilitation program, and is now writing and performing again, while acing college classes and looking for a steady job.

Stories like Moss's show that not only does our overly punitive criminal justice system extract a huge financial and emotional toll. It also furthers racial inequalities and poverty and, as the Plata decision demonstrated, violates Constitutional rights.

'Tough on Crime' Time Has Passed

The failure of our legislators to solve the incarceration crisis is generally attributed to a fear of appearing soft on crime. But evidence is mounting that the familiar emotional draw of "tough on crime" has lost much of its appeal to voters. For example, the candidates who campaigned with that rhetoric in 2010, including Meg Whitman for governor, Carly Fiorina for U.S. Senate and Steve Cooley for attorney general, lost by sizable margins.

And Gov. Brown's decision at the beginning of his term to cancel the construction of a new death row facility would seem to signal that massive new investment in the state's machinery of death is no longer tenable.

Responding to the budget crisis and anticipating the Plata decision, Gov. Brown's realignment plan, AB 109, transfers the supervision of low-risk inmates sentenced after Oct. 1, 2011 from state prisons to counties. AB 109 may be the most significant reform of California's criminal justice system in 30 years. But implementation of the plan now rests on the shoulders of leaders at the county level.

The Potential of AB 109

The governor's realignment plan could reduce the number of inmates in state prisons by sending low-risk people convicted of non-serious, non-violent offenses to county jails or community supervision instead. The new law will also significantly overhaul the parole system by ending the decades-long practice of sending technical parole violators – who have not committed a new crime – back to prison. This means that county officials will have more control over funding, and greater decision-making authority to assign individuals to alternatives to incarceration and to reentry programs with a strong track record, as AB 109 encourages them to do.

Many county sheriffs are understandably concerned about how they will handle the influx of inmates. County jails throughout the state are already at or above capacity, with many currently under court-ordered population caps themselves. Nearly four hundred million dollars, derived from sales tax revenues, have been allocated by the state to help counties to handle their new responsibilities.

County Leadership – Direct Advocacy by ACLU Members Will Make a Difference! Just 12 days after the state budget and AB 109 were adopted by the state legislature and the governor, the ACLU of California sent a letter to all of the local officials in all 58 counties who are in charge of AB 109 implementation – including the chief probation officers, presiding judges, district attorneys, sheriffs and public defenders – urging that they maintain a "focus on evidence-based solutions for reentry and alternatives to incarceration." Each county is responsible for developing the local implementation plans to be submitted to each county's Board of Supervisors by Oct. 1, 2011.

As an ACLU member, you can play a valuable role by advocating directly to leaders in your county who are responsible for drafting and implementing their AB 109 plans, starting with your chief probation officer. Time is of the essence, as August and September are the critical months in the planning process.

The Next Frontier: Sentencing Reform

Although AB 109 is a promising step toward reducing state prison populations, it does not go far enough. Changing California's sentencing laws is one of the complementary reforms needed to relieve the pressures caused by over-incarceration at the state and county levels.

The ACLU of California is asking state legislators to enact two simple sentencing reforms that would save California taxpayers hundreds of millions of dollars annually:

• Make possession of small amounts of drugs a misdemeanor instead of a felony.
• Make low-level, non-violent property offenses misdemeanors instead of felonies.

These reforms will mean shorter jail sentences of a few months or up to a year, instead of up to three years which is typical for these non-serious felonies, freeing up jail and prison space for those who have committed more serious crimes. A recent poll commissioned by the ACLU and our partners found that 72 percent of voters back these reforms.

California is on the road to significantly reduce its prison population to comply with Plata, but it will take a great deal of grassroots advocacy in our counties and in Sacramento to encourage our lawmakers and local government officials to seize the opportunity for meaningful reform. The incarceration crisis is one of the defining civil rights issues of our time. There is a great deal at stake. With your help, the ACLU can make a real difference.

AB 109 AT A GLANCE Takes effect Oct. 1

• Shifts newly sentenced low-level offenders from state prison to county supervision
• Encourages, but does not require, counties to seek alternatives to incarceration
• Encourages counties to adopt evidence-based rehabilitation and reentry programs
• Provides funding for counties to implement the plan
• Appoints an executive committee in each county, of seven members, to develop the plan by Oct. 1. The committee is chaired by the probation chief and includes the sheriff, district attorney, presiding judge, and public defender.