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Legal Commentary

: Prawfs

Read my lips, "no early releases from prison"

By Dan Markel, Ethan Leib, Rick Garnett, Matt Bodie, Paul Horwitz , Steve Vladeck, and Orly Lobel

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As day light breaks over the second day of California's epically ugly budget compromise there are signs the deal may yet fall apart on the way to a legislative vote later this week. The problem is not that draconian cuts in social services to the poor and disabled, the open thievery of county revenues, or the very obvious gimmicks like moving the dates of pay days from one fiscal year to another, its the possibility that some California prisoner, somewhere, may leave a prison early. According to Matthew Yi's reporting in the SF Chron:

The plan, according to Matt Cate, Schwarzenegger's top prison official, would reduce the prison population this year by 27,000 inmates, some of whom would be released early. The plan includes:

-- Sending thousands of old and sick inmates to non-prison hospitals.

-- Allowing some non-violent, non-sex offending inmates to serve the last year of their sentence in house arrest.

-- Allowing some non-violent inmates to earn time served by receiving GED or vocational training.

-- Creating a sentencing commission to overhaul the state's sentencing laws.

The governor would also begin considering thousands of illegal immigrant inmates who may be turned over to federal authorities for deportation.

Early prisoner release seems to have joined taxes as a constitutive principal for Republicans, with their leader in the California Senate promising:

"If a majority vote bill is moving forward to release prisoners early... there will be no votes on the larger budget until this issue is resolved."

But while the issue is being framed in partisan terms thus far it reflects a powerful consensus between the parties over the public's interest in keeping criminals behind bars. It is true that the Republicans would be happy to leave California government nothing much more than a giant prison system, while the Democrats insist on keeping the educational/welfare sector funded as well, but there is every reason to believe that Democrats will also retreat should the prison lobby (law enforcement, the guards union) carry through on their threats to make the prisoner releases a major issue in the upcoming election cycle.

Most of the cuts planned are small administrative moves that can easily be reversed should public anxiety spike over an ugly crime committed by someone who might otherwise have been in prison (nearly inevitable). Still, the compromise is significant for constituting the first explicit discussion of a permanently smaller prison system. The most important element for long term reductions in the prison population is the promise of a sentencing commission. But if "no early releases" really does become the new "no new taxes", don't count on an easy agreement over the commission's mandate or its final result.

After 9:00 am update:

The discussion on Michael Krasny's Forum show (KQED) with the Democratic legislative leaders has shed further light on this. Darrell Steinberg, the President Pro Tem of the Senate was emphatic: "This is not early release. There is no early release in the package," and a bit later in the interview, "No one is going to be released from the jurisdiction of the California Department of Corrections and Rehabilitation early.." Karen Bass, Speaker of the House, was equally concerned to address what she said was a dangerous "politicization" of the corrections budget. "Early release means you open the door and let them go. Thats not whats going to happen."

Bass and Steinberg are about as advanced as any leaders in the state's recent history in being willing to discuss the boundaries of the penal state, but even they feel the power of this prison door metaphor. How you work around a metaphor that powerful is one that will be quite fascinating to watch.

Full post as published by Prawfs on July 22, 2009 (boomark / email).