The 2010-11 Budget: Assessing the Prison Population Reduction Proposal

POLICY BRIEF The 2010-11 Budget: Assessing the Prison Population Reduction Proposal MAC TAylor • l e g i s l A T i v e A n A l y s T • JAnuAry 25, 2010 As part of the January 2010 spe‑ budget of the California Department of Correc‑ cial session to begin bringing the tions and Rehabilitation (CDCR). These were to 2009‑10 and 2010‑11 budgets result from various administrative and program‑ into balance, the Governor proposes statutory matic changes (such as reductions to inmate and changes to reduce the state’s inmate and parolee parolee rehabilitation programs), as well as from populations. Specifically, the Governor proposes various policy changes to reduce the inmate and to require that offenders who have no prior parole populations (as specified in Chapter 28, serious or violent offenses and are convicted of Statutes of 2009 [SBX3 18, Ducheny]). Some of certain property and drug felony crimes serve these changes include: (1) commuting the sen‑ a maximum sentence of one year and one day tences of and deporting certain undocumented in county jail in lieu of a state prison sentence. inmates currently incarcerated in prison; (2) mak‑ The administration estimates that, if approved by ing ineligible for revocation to prison parole March 1, 2010, these changes would reduce state violations by certain parolees with no serious, correctional costs by $25.2 million in 2009‑10 violent, or sex offenses; (3) increasing the cred‑ and $291.6 million in 2010‑11. In this brief, we its that inmates can earn to reduce their stay in (1) analyze the Governor’s proposal, particularly prison; (4) increasing the dollar threshold for cer‑ in the context of recent policy actions to reduce tain property crimes to be considered a felony, the inmate and parole populations, and (2) rec‑ thus making fewer offenders eligible for prison; ommend modifying the Governor’s proposal to and (5) providing fiscal incentives to counties permit counties to place additional jail inmates to reduce the number of revocations of persons on electronic home monitoring. on probation to state prison. The budget plan assumed that the various changes would reduce Recent Actions to Reduce State the inmate population by roughly 18,500 inmates Correctional Populations in 2009‑10 and 25,000 inmates in 2010‑11 from 2009‑10 Budget Package Assumed Signifi‑ a base of about 168,000 inmates. cant Population Reduction. The 2009‑10 bud‑ However, the actual reduction in the inmate get assumed about $1.2 billion in savings in the population from the above policy changes is An lAo reporT now estimated to be significantly less than ini‑ posal for 2010‑11—adjusting the dollar threshold tially planned—about 1,600 inmates in 2009‑10 for grand theft and releasing certain elderly and and 11,800 inmates in 2010‑11. This is primarily infirm inmates from prison and placing them due to delays and changes in the implementation on house arrest with Global Positioning System of the new policies. For example, the Governor’s monitoring. budget assumes only 200 sentence commuta‑ Governor’s Special Session Proposal tions in 2009‑10, which is significantly less than Has Merit, but Some Shortcomings the 8,500 assumed in the enacted 2009‑10 budget. As a result of these various changes, as Under the Governor’s special session propos‑ well as the fact that the Legislature did not adopt al, certain felonies that are eligible for incarcera‑ sufficient statutory changes to allow a greater tion in state prison would be converted to a felo‑ reduction in correctional populations, the Gov‑ ny conviction punishable by not more than 366 ernor’s budget reflects that only about half of the days in county jail. The affected specific felonies $1.2 billion in savings assumed in the enacted that would be converted, which are summarized 2009‑10 budget will be realized in the current in Figure 1, include various drug and property year. crimes, such as drug possession, receiving stolen Federal Court Orders Inmate Population property, and check fraud. All of these felonies Reduction. On January 12, 2010, a federal three‑ are so‑called “wobbler” crimes that currently judge panel issued a ruling requiring the state to can be tried either as misdemeanors or felonies. reduce its inmate population to 137.5 percent of Offenders convicted of these crimes who have a design capacity—a reduction of roughly 40,000 prior conviction for a serious or a violent felony inmates—within two years. However, the court would continue to be eligible for incarceration stayed implementation of this court ruling pend‑ in state prison. As indicated in the figure, the ing the state’s appeal of the decision to the U.S. administration estimates that this proposal would Supreme Court. The January 12 ruling does not reduce the average daily inmate population by specify the particular inmate population reduc‑ about 15,100 inmates upon full implementation. tion measures that the state must implement. (The list of affected crimes would be expanded However, the court did require the administra‑ under a “trigger” proposed as part of the Gover‑ tion to submit an inmate population reduction nor’s budget plan. If the federal government does plan on November 19, 2009, and indicated in its not provide the $6.9 billion in additional funds January 12 ruling that the administration could sought by the administration in order to reduce implement the measures identified in the plan. General Fund costs, various alternative revenue This plan included the above policy changes that and expenditure reduction proposals would be were adopted as part of the 2009‑10 budget, as triggered, including an expansion of this proposal well as the Governor’s special session proposal to change state sentencing laws.) to divert certain felons from prison to county jail. As we discussed in our 2009‑10 Budget In addition, the plan submitted to the court in‑ Analysis Series: Judicial and Criminal Justice (see cluded two other population reduction measures page CJ‑10), we have identified four primary cri‑ that are not part of the Governor’s budget pro‑ teria that we recommend the Legislature consider 2 Legislative Analyst’s Office www.lao.ca.gov An lAo reporT when evaluating various correctional population · Shift of Responsibilities to Local Gov‑ reduction proposals: ernments. Will the proposal increase local costs to incarcerate more offenders · Budget Savings. What is the magnitude in county jails or supervise offenders on of savings that will be achieved? To county probation? What impact will the what extent is the actual level of savings proposal have on jail overcrowding? dependent on changes to department operations? How quickly will the savings Based on the above criteria, we analyze be‑ level be achieved? Will savings be de‑ low the Governor’s special session proposal. layed because of implementation require‑ Achieves Significant Savings, but Appears ments? Overstated. Our analysis indicates that the ad‑ ministration’s estimate that $291.6 million in sav‑ · Prison Overcrowding. To what extent ings could be achieved in the budget year from will the proposal reduce prison over‑ the special session proposal may be somewhat crowding? To what extent does the overstated. This is because the savings estimate particular population reduction proposal does not take into account the length of time it result in ancillary benefits, such as avoid‑ could take to lay off correctional staff who may ing the need to build additional prison no longer be needed due to a lower inmate pop‑ bed capacity or improving prison opera‑ ulation or the length of time to cancel contracts tions? with private prison facilities and transfer inmates · Public Safety. How will the proposal back to state‑run institutions. The projected sav‑ affect public safety? Can any negative ings assume that the policy change would be impacts to public safety be mitigated? implemented and operational by CDCR start‑ Figure 1 Governor’s Special Session Proposal: Jail Time Instead of Prison for Specified Felonies (Dollars in Millions) 2009-10 2010-11 2011-12 Offense Category ADPa Savings ADP Savings ADP Savings Drug possession 233 $4.9 2,299 $53.0 2,520 $58.0 Possession of controlled substance 165 3.5 1,626 37.4 1,782 41.0 Possession for sale/sale of 230 4.9 2,833 65.2 3,888 89.5 controlled substance Grand theft 120 2.5 1,386 31.9 1,702 39.2 Auto theft 167 3.5 1,496 34.5 1,586 36.5 Auto theft with a prior 32 0.7 398 9.2 600 13.8 Petty theft with a prior 121 2.6 1,318 30.0 1,537 35.4 Check fraud 10 0.2 102 2.3 114 2.6 Receiving stolen property 115 2.4 1,204 27.7 1,366 31.5 Totals 1,193 $25.2 12,662 $291.6 15,095 $347.6 a Average daily population. www.lao.ca.gov Legislative Analyst’s Office 3 An lAo reporT ing in June 2010 (three months after the end of dreds of millions of dollars to operate the new the special session). However, it recently took facilities, as well as pay the debt service for the the department, acting expeditiously, about six lease‑revenue bonds to construct them. months to implement layoffs for teaching staff Mitigates Some Impacts on Public Safety. due to various requirements pertaining to the While most prison population reduction pro‑ state’s layoff process. Thus, we believe that, even posals raise concerns because of the potential under a best case scenario, savings would more impact on public safety—mainly since inmates likely be realized starting in September 2010. would no longer be incapacitated in state In addition, the administration’s savings prison—the Governor’s proposal helps allevi‑ estimate does not take into account the likely ate some of these concerns. For example, the overlap with the savings with some of the other proposal would still allow for the incapacitation population reduction measures recently enacted of these offenders—in county jail rather than as part of the 2009‑10 budget. Moreover, certain state prison. In fact, since most of these offenders unknown variables regarding the implementa‑ spend on average less than one year in prison, tion of the measure (such as possible changes in from a fiscal and facility management stand‑ prosecutorial behavior), could further affect the point it appears more efficient and appropriate actual level of savings. In view of the above, we to house them in short‑term county jail facilities. estimate that the Governor’s proposal would save This would help prioritize limited prison resourc‑ about $5 million in 2009‑10 (mostly in operating es for longer‑term and more serious commit‑ expenses and equipment) and about $250 mil‑ ments. In addition, all of the crimes included in lion in 2010‑11—still a significant reduction in the Governor’s proposal are so‑called wobblers prison costs. crimes that already may be tried by prosecutors Alleviates Prison Overcrowding and Possibly as misdemeanors instead of felonies. As a result, Reduces Construction Needs. When combined many offenders convicted of such crimes are with the population reduction proposals ap‑ already sentenced to jail under current law. (In proved as part of the 2009‑10 budget, the Gover‑ our Analysis of the 2008‑09 Budget Bill [see page nor’s special session proposal would substantially D‑112], we suggested changing these wobbler alleviate overcrowding in the prison system by crimes to be prosecuted only as misdemeanors reducing the inmate population by about 24,500 to achieve significant state savings.) inmates in 2010‑11. This would increase by a But Places Pressures on Local Governments. few thousand more inmates in future years. This Currently, roughly half of all county jails in the would be lower than the 40,000‑inmate popu‑ state are under court‑ordered or self‑imposed lation reduction that would be required under population caps—resulting in many counties the ruling of the federal three‑judge panel but releasing certain inmates early due to lack of would put the state closer to meeting that poten‑ jail space. Thus, most county jails would not be tial target. Moreover, it could reduce the need able to house the additional offenders that they for the prison construction projects authorized would be required to supervise under the Gov‑ in Chapter 7, Statutes of 2007 (AB 900, Solorio) ernor’s proposal. In some instances, county jails to help alleviate the state’s prison overcrowding would simply release other inmates early to “free problem. As a result, the state might be able to up” limited jail beds for the new population. In avoid increased General Fund costs in the hun‑ 2007, over 200,000 jail inmates were released 4 Legislative Analyst’s Office www.lao.ca.gov An lAo reporT early due to lack of space. While additional early convicted of the specified crimes. As a result, releases would likely be limited to lower‑level we recommend that the Legislature approve the offenders who present the least risk to public Governor’s proposal to redirect certain offend‑ safety, such releases raise some local public ers from state prison to county jail. However, safety concerns. However, in the long run, these to address some of the shortcomings we have concerns could be addressed with $1.2 billion identified above, we recommend modifying the that was allocated in AB 900 for the construction proposal in two ways we discuss below. In addi‑ of 13,000 additional jail beds. tion, given the state’s fiscal condition, the Legis‑ And Could Have Unintended Consequenc‑ lature may want to consider adopting additional es. Our analysis indicates that the administra‑ population reduction measures. tion’s proposed budget trailer legislation to imple‑ Allow Counties to Expand Use of Alterna‑ ment the special session proposal is worded in tives to Incarceration. Under current state law, such a way that could result in some unintended a county board of supervisors may authorize a consequences. This is because the proposed sheriff’s department to release offenders who language appears to inadvertently affect offend‑ have been sentenced to jail on a misdemeanor ers who have a prior serious or violent felony. offense early and place them on house arrest Specifically, the language could be interpreted to under electronic monitoring. Although state‑ mean that such offenders with prior records must wide data is not available on how often such an now be convicted of a felony if they commit one alternative custody program is used at the local of the crimes specified in the proposal. This is level, our conversations with sheriff department a departure from current law which states that officials indicate that it is a key tool for managing these offenders could be convicted of either a their overcrowded jail populations. More impor‑ felony or a misdemeanor. Such a change would tantly, they believe that the program has not had increase the likelihood that these offenders are a significant adverse impact on public safety and sentenced to state prison. In particular, they provides significant fiscal benefits for local gov‑ would be subject to a much longer prison sen‑ ernments. In order to further alleviate the impact tence under the “Three Strikes and You’re Out of the Governor’s proposal on county jails, we Law.” However, based on our discussions with recommend that the Legislature adopt statutory the administration, this is not the intention of the language permitting counties to place additional proposal. jail inmates (such as those convicted of a felony) on electronic home monitoring in lieu of incar‑ LAO Recommendation: Approve ceration. Governor’s Proposal With Modifications Revise Savings Estimates and Proposed Statu‑ The Governor’s special session proposal tory Language. In addition, we recommend that provides a reasonable starting point for the Legis‑ the Legislature reduce the assumed savings related lature to consider making additional correctional to the proposal to a more realistic level of $5 mil‑ population reductions a part of its approach to lion in 2009‑10 and $250 million in 2010‑11. We balancing the state budget. Specifically, the pro‑ further recommend that the Legislature revise the posal would achieve significant savings and sub‑ administration’s proposed legislation to clarify stantially alleviate inmate overcrowding, while that offenders who are charged with the speci‑ still allowing for the incarceration of all offenders fied wobbler crimes and who have prior serious www.lao.ca.gov Legislative Analyst’s Office 5 An lAo reporT or violent offenses would still be eligible to be list of the strategies available to reduce the state tried for a misdemeanor, as is the case under correctional population.) For example, we have current law. recommended in the past the release of certain Consider Additional Population Reduc‑ non‑violent, elderly inmates from prison early tion Proposals. Given the state’s current Gen‑ since these inmates represent a low risk of reof‑ eral Fund shortfall, as well as the inability to fending yet cost two to three times as much to fully meet the reduction target assumed in the incarcerate as the average inmate. Although the 2009‑10 budget for CDCR, we recommend the federal three‑judge panel’s recent ruling would, if Legislature consider adopting additional inmate sustained, require a significant inmate population and parole population reduction measures. In reduction, the Legislature could take steps now recent years, our office has proposed a number to ensure that it is done in a way that reflects of such measures for legislative consideration. legislative policies and priorities rather than those (Please see our 2009‑10 Budget Analysis Series: of the administration or the court. Judicial and Criminal Justice for a comprehensive 6 Legislative Analyst’s Office www.lao.ca.gov An lAo reporT www.lao.ca.gov Legislative Analyst’s Office 7 An lAo reporT LAO Publications This report was prepared by paul golaszewski, and reviewed by Anthony simbol. The legislative Analyst’s office (lAo) is a nonpartisan office which provides fiscal and policy information and advice to the legislature. To request publications call (916) 445-4656. This report and others, as well as an e-mail subscription service, are available on the lAo’s internet site at www.lao.ca.gov. The lAo is located at 925 l street, suite 1000, sacramento, CA 95814. 8 Legislative Analyst’s Office www.lao.ca.gov