Prison Realignment: Fix the Funding Formula

After decades of tough-on-crime policies and draconian sentencing practices, California's correctional system - a state with one of the highest incarceration rates in a country with one of the highest incarceration rates - finally buckled under its own weight. Faced with last year's historic Supreme Court order requiring a reduction in prison overcrowding, the state enacted AB 109 to realign the criminal justice system. Under AB 109, most people convicted of low-level, non-violent offenses will no longer go to state prison. Instead, the new law encourages counties to employ alternatives to incarceration and provides options for holding individuals accountable through evidence-based approaches to public safety such as restorative justice, community sanctions, drug and mental health treatment and vocational programs.

While the state is taking steps toward reducing its bloated prison-industrial complex, it appears to be quickly replacing it with a jail-industrial complex. A fatal flaw in the allocation formula the state used to distribute funding among counties to pay for realignment has virtually ensured "lock 'em up" business as usual. A new report by the ACLU of California reveals that 24 of the 25 counties that have received the most realignment dollars thus far have plans to expand their jail capacity. Approximately $45.1 million in realignment funding provided to these counties has been budgeted to create 7,002 new jail beds and add 722 new corrections-related staff. (The report, "Public Safety Realignment: California at a Crossroads," is available online at www.aclunc.org/realignment).

Rather than base county funding levels on crime rates and public safety needs, or upon a demonstrated willingness and ability to employ cost-effective alternatives to incarceration, the state relied on the historical average daily state prison population of persons convicted of low-level, non-violent offenses from each county before realignment. The higher the past prison incarceration rate, the higher that county's piece of the funding pie.

For example, San Francisco, with a population of about 805,000, received about $5.2 million last year while Tulare, with half that population, received $5.9 million. Similarly, Fresno, with about 930,000 people, received over $9 million while Contra Costa, with over one million people, received half as much realignment money, about $4.7 million.

The legislature specified that the average daily population approach would be used only for the first year of realignment. Right now, behind closed doors, the California State Association of Counties is developing a new proposed funding formula. Unfortunately, early indications are that past years' average daily populations will likely continue to play a large role in determining how much money each county will get.

So long as the realignment funding formula relies heavily upon past-years' prison incarceration averages, the state effectively continues to encourage the policy choices that contributed most to the state prison overcrowding crisis in the first place.

The justification for basing realignment funding upon past-years' average daily populations may seem logical at first glance: counties affected by realignment that used state prisons more for low-level offenses in the past will shoulder a greater burden than those that were already employing less expensive alternatives to incarceration. The high-prison-use counties, so the argument goes, need more state help because they have not developed the infrastructure necessary for providing rehabilitative alternatives to incarceration. These counties can't hit the ground running as easily as those that had already been moving toward alternatives to incarceration, such as San Francisco, Alameda, and Santa Cruz.

The arguments for considering average daily populations would be more persuasive if the counties needing more help were using the extra realignment funding to begin building their capacity to employ alternatives to incarceration. Instead, they are using it to add jail capacity, not to fund programs and services necessary to successful reentry and reducing recidivism. The very real danger is that these counties will continue to incarcerate more people for low-level offenses, but will simply put them in local jails instead of state prison. Taxpayers throughout the state will continue to pay the price - through state-provided realignment funding - for local criminal justice policy choices maintaining a stubborn insistence on incarceration rather than rehabilitation.

State funding allocations must be based upon counties demonstrating the sorts of positive outcomes realignment was meant to achieve: lower recidivism rates and increased use of cost-effective alternatives to incarceration. The funding formula should incentivize counties to adopt the programs and policies demonstrated to work best. This will require counties to collect and report standardized data on public safety outcomes, something that the state should have required in AB 109 but did not. The newly-created Board of State and Community Corrections is tasked with collecting all of the county realignment implementation plans and monitoring local implementation efforts. As the Legislative Analyst's Office noted in a recent report, however, the precise role and duties of the Board need to be further specified: "The Legislature has not specifically laid out in statute BSCC's responsibilities in fulfilling this mission, leaving open a number of questions that need to be addressed. For example, how should BSCC be structured, what types of data should it collect, what form should its technical assistance take, and how can it help ensure local accountability and success?"

This year's state budget should provide funding to counties specifically earmarked for data collection and reporting, and the Board should partner with academic institutions, think-tanks, and advocacy organizations to develop a robust state-wide outcome measurement program. The Board should identify data that counties are required to report, such as recidivism rates (using a consistent statewide definition of recidivism), pretrial percentage of jail population, and implementation of community-based alternatives to incarceration. The state also should make clear that counties that fail to collect and report the data will miss out on future allocations based on those outcome measurements.

Until outcome measurement data is available, the legislature should adopt an interim funding

allocation formula based upon currently-available data, but not driven by past years' average daily populations. The formula should be based upon objective risk factors - such as a county's crime rate and felony probation work-load - that measure current and ongoing burdens experienced by local criminal justice systems, rather than simply measuring the rate at which counties, prior to realignment, made the policy choice to send more people to state prison for low-level felonies than other similarly-situated counties.

Last year the legislature and the governor delegated creation of the funding allocation formula to the California State Association of Counties. Because county cooperation was essential to making realignment work, the state placed a premium on giving counties considerable flexibility and autonomy in deciding how to allocate the funding and implement realignment. But the legislature and governor are ultimately responsible to taxpayers throughout the state and must ensure that the funding formula maximizes public safety return for taxpayer investment.

There are telling signs that public opinion is shifting away from support for jail and prison expansion. Importantly, during the upcoming election cycle when the governor is asking voters to approve tax increases to provide constitutionally guaranteed funding for counties to implement realignment, state officials should reassure the public that the state is carefully monitoring what counties are doing with that money. If voters understand that, even after realignment, millions of dollars continue to go toward building more jail cells, the already-tenuous support for the governor's tax proposal may erode even further.

The incarceration habit is deeply engrained, and the politics and practice of shifting away from it will not be easy. It is overly optimistic to assume that counties with long histories of over-using state prisons will adopt meaningful criminal justice reforms on their own without any state mandates, incentives, or oversight. For realignment to succeed, multiple local agencies must collaborate, and the necessity for joint planning and standardized reporting adds complexity. But the payoff will be increased public safety, reduced recidivism, and a resolution to the prison and jail-overcrowding crisis that has bedeviled California policymakers for decades.

Allen Hopper is an attorney and director of the Criminal Justice and Drug Policy Project of the ACLU of California.