Legal Commentary

Staggering to the end of what Assembly Speaker Karen Bass called "a painful year for all of us", the California legislature passed and sent on to Governor Schwarzenegger a prison bill that will help the state save about a billion dollars (in a 26 billion deficit situation), about 200 million short of the governors announced goal (read Michael Rothfeld and Shane Goldmacher's reporting in the LATimes; and Kevin Yamamura, Steve Wiegand and Jim Sanders' reporting in the SacBee).  The other number, besides the budget, is the 40,000 inmate reduction over two years called for by the three judge federal court in the Plata/Coleman case.  The plan is expected to reduce the prison population by about 17,000 during the year, as opposed to the 27,000 projected by the Governor's plan. While the "reforms" enacted are certainly sensible, and while the numbers may yet add up to something that will satisfy the federal court, the portions of the plan that opponents were able to defeat highlights the difference between short term adjustments and sustainable reform.  As Senator Gloria Romero put it: "What's not in the bill is a resolution and solution to this prison crisis." The items dropped from the Governors more ambitious plan (which was enacted by the state senate) also reveals the black hole of public trust at the center of the constellation of political forces we call "mass incarceration." 

According to the Governor's spokeswoman: "the centerpiece of this legislation is the parole reform that protects public safety, avoids early release and saves the state nearly $1 billion." The plans major proposal, and where most of the savings come, is the parole reform measure that will essentially create a new parole status for inmates deemed lower risk.  Prisoners released onto this parole-lite would continue to be subject to special parole conditions (including a waiver of 4th Amendment rights) but would not receive active supervision by a parole agent and most importantly, would not be eligible for administrative return to custody for violating those conditions (they could still be sent to prison for a new term based on a new court conviction). 

The plan is not a bad one, although I question whether a parole status whose only purpose is to permit police to ignore the Fourth Amendment should survive a constitutional challenge.  California is practically alone in placing every single one of its vast number of prisoners on parole at the end of their most determinate sentences.  Public safety probably will be improved if parole supervision is focused on a more select group of high risk parolees (like Philip Garrido), and prison conditions will improve if some of the 70,000 plus parolees a year sent back to prison are kept in the community instead.  However, depending on how the classification process works, I would expect relentless pressure on the bureaucracy to classify prisoners as high enough risk to qualify for active parole.  Especially after the inevitable media frenzy that will happen once a "low risk" parolee rapes or murders someone, the ratio of low to high risk parolees on which all the savings depend will shift in favor of more surveillance for more people.

The two elments of the Governor's plan that were defeated are revealing about the kinds of mistrust that anchor political resistance to reform.  First, the Governor would have saved another 200 million by moving some 6,300 most elderly or very sick inmates to hospices, hospitals, and in some cases to home arrest in what was euphemistically being called "alternative custody" to avoid the dreaded accusation of "early release."  The idea of "early release" is, of course, a highly arbitrary one in California, since the length of our prison sentences have no relationship to any principled basis of penology.  But even one wants to call it early release, the fact that Californians (or more precisely their representatives in Sacramento) are terrified by the idea that some 65 year old life long meth addict dying of emphysema may be housed in a hospice outside of prison walls is sad and pathetic.

Far more crucial is the fear of expert knowledge represented by the defeat of a sentencing commission.  The commission would have been stacked with law enforcement represenatives appointed by the Governor and the legislature anyway, but even so the chance that a systematic overhaul of our penal choices would have been authorized was considered far too dangerous by organized law enforcement (most I assume the Correctional Officers union) and prosecutors who benefit from being able to draw on a vast an incoherent jumble of excessive punishment.