A Status Report: Reducing Prison Overcrowding in California

POLICY BRIEF A Status Report: Reducing Prison Overcrowding in California MAC TAylor • le g i s lA Ti v e A n Al y sT • Augus T 2011 Executive Summary On May 23, 2011, the U.S. Supreme Court issued a ruling in a lawsuit against the state involving prison overcrowding. Specifically, the court upheld the ruling of a federal three-judge panel requiring the state to reduce overcrowding in its prisons to 137.5 percent of its “design capacity” within two years. Currently, the state prison system is operating at roughly 180 percent of design capacity—or about 34,000 inmates more than the limit established by the three-judge panel. The ruling, however, did not specify the particular measures that the state must implement to comply. On June 7 and July 21, the administration submitted reports to the three-judge panel describing specific measures that were recently taken, as well as those in the process of being implemented, to reduce overcrowding in California prisons. As we discuss in this brief, the administration’s reports to the court do not preclude the Legislature from assessing the measures identified by the administration and considering its own strategy for compliance with the court ruling based on its priorities. The Legislature has already taken an important first step in complying with the court’s ruling by recently approving a package of legislation to shift the responsibility for certain low-level offenders from the state to counties. Although this realignment of services would significantly reduce prison overcrowding upon full implementation, and go a long way to complying with the court mandates, it may fall several thousand inmates short of meeting the require- ments within the deadlines. Based on the information and data available to us at the time of this analysis regarding how realignment will reduce the prison population, we recommend that the Legislature: ➢ Encourage the administration to request additional time from the court to comply with its mandate to reduce overcrowding in California’s prisons. ➢ Direct the California Department of Corrections and Rehabilitation (CDCR) by statute to report on the justification of each prison construction project that it now proposes (including projects that have already been approved) in light of the inmate population reductions that will occur because of the three-judge panel ruling and the enactment of the realignment plan. Entering into contracts for these projects would be put on hold until the Legislature received and reviewed the report in January. ➢ Change state law to authorize CDCR to continue to transfer prison inmates involuntarily to out-of- state contract beds at least until the court’s requirements are met. An lAo r eporT Background holding additional offenders, in other public or private facilities, as we discuss later in this analysis. Federal Three-Judge Panel Reviews Prison In response to the above ruling, the Overcrowding. In November 2006, plaintiffs in Schwarzenegger administration initially submitted two ongoing class action lawsuits—Plata v. Brown a plan that included various compliance measures, (involving inmate medical care) and Coleman v. such as changes in parole practices, expanded use Brown (involving inmate mental health care)—filed of contract prison facilities, and the construction motions for the courts to convene a three-judge of new prisons. However, the court rejected panel pursuant to the U.S. Prison Litigation this plan because it would have only reduced Reform Act. The plaintiffs argued that persistent overcrowding to 151 percent of design capacity overcrowding in the state’s prison system was within two years. At the request of the court, preventing CDCR from delivering constitutionally the Schwarzenegger administration submitted a adequate health care to inmates. In July 2007, the revised plan in November 2009 that kept the prior federal courts convened such a three-judge panel measures, but also included additional sentencing to determine whether (1) prison overcrowding was law changes to meet the 137.5 percent population the primary cause of CDCR’s inability to provide limit. On January 12, 2010, the three-judge panel constitutionally adequate inmate health care and issued a final ruling that the state’s revised plan (2) a prisoner release order was the only way to met its requirements, but left it up to the state to remedy these conditions. decide which specific measures to implement so Court Panel Orders State to Reduce Prison long as its overall target for reduction of the inmate Overcrowding. On August 4, 2009, the three-judge population was met. The court also required the panel declared that overcrowding in the state’s state to report at specific intervals on its progress. prison system was the primary reason that CDCR However, the court stayed implementation of all was unable to provide inmates with constitutionally aspects of this ruling while the state appealed adequate health care. Specifically, the court ruled the decision of the three-judge panel to the U.S. that in order for CDCR to provide such care, Supreme Court. overcrowding would have to be reduced to no more U.S. Supreme Court Upholds Ruling. On than 137.5 percent of the design capacity of the May 23, 2011, the U.S. Supreme Court upheld the prison system within two years. (Design capacity three-judge panel’s ruling, declaring that “without generally refers to the number of beds that CDCR a reduction in overcrowding, there will be no would operate if it housed only one inmate per cell efficacious remedy for the unconstitutional care of and did not “double-bunk” in dormitories.) The the sick and mentally ill” inmates in California’s court required the state to reduce overcrowding prisons. However, the high court indicated that the to specific design capacity limits at six-month state could request the three-judge panel to modify intervals leading up to the two-year deadline. certain aspects of its ruling. For example, the The court also required the state to submit a plan high court said that, given potential public safety identifying what measures it would implement concerns and ongoing efforts to improve medical to reduce overcrowding. The court ruling applies care in the prisons, the state “may wish to move to the number of inmates in prisons operated for modification of the three-judge court’s order to by CDCR, and does not preclude the state from 2 Legislative Analyst’s Office www.lao.ca.gov An lAo r eporT extend the deadline for the required reduction to 4,000 inmates in fire camps managed jointly by five years.” On June 7 and July 21, 2011, the admin- CDCR with the California Department of Forestry istration submitted reports to the three-judge panel and Fire Protection. Neither the contracted updating the court on steps taken thus far to reduce facilities nor the fire camps are subject to the three- prison overcrowding. The administration has not judge panel ruling.) yet requested any modifications to the three-judge As previously mentioned, the three-judge panel panel’s order, but noted in its most recent report to ruling requires the state to reduce overcrowding to the court that within a few weeks it will “advise the specific design capacity limits at six-month intervals Court if modifications to the benchmark schedule leading up to the two-year deadline. The design appear to be warranted.” capacity allowed for the prison system is reduced in a series of steps over that period to 137.5 percent. How Does the Court Ruling Figure 1 shows, for each six-month interval, the Limit the State’s Inmate Population? design capacity limit ordered by the court, the corre- Currently, CDCR operates 33 prisons with a sponding number of inmates that the state could design capacity of about 80,000 beds. This means house in its prisons, and the incremental inmate that the department will only be allowed to house population reductions necessary to meet the court’s 110,000 inmates in the prisons it operates within population limit. For example, based on the existing two years. However, the court did not specify that capacity of the prison system, the state would have each prison must be at or below the 137.5 percent to reduce its inmate population by about 11,000 limit for design capacity, but rather that the system inmates by December 27, 2011 relative to the number as a whole must be below that limit. In other words, the state held in CDCR’s institutions at the time of if certain prisons were significantly below the this analysis. design capacity limit, the state could continue to How Does CDCR Plan to overcrowd the other prisons above the limit, while Comply With the Ruling? still maintaining a systemwide design capacity of 137.5 percent. Based on a current population of In its June 7 and July 21 reports to the federal about 144,000 inmates housed in state-run prisons court, the administration described what measures and the existing capacity at these prisons, the state have already been undertaken, or are in the process would have to reduce its inmate population by Figure 1 roughly 34,000 inmates Estimated Inmate Population Reductions to within two years. (The Meet Federal Court Ruling state also houses about Court-Imposed Design Population Population 14,000 inmates in contract Deadlines Capacity Limit Limit Reductiona facilities run by either December 27, 2011 167.0% 133,000 11,000 June 27, 2012 155.0 123,000 10,000 local public agencies or December 27, 2012 147.0 117,000 6,000 private companies in June 27, 2013 137.5 110,000 8,000 California and other Two-Year Total 34,000 states, and holds about a Relative to July 13, 2011 state prison population of 143,493. www.lao.ca.gov Legislative Analyst’s Office 3 An lAo r eporT of being implemented, to reduce overcrowding. the Governor’s emergency order. Currently, These measures include the following: about 10,000 inmates are in such facilities ➢ Various 2009-10 Statutory Changes. in addition to the roughly 4,000 inmates that are housed in contract facilities located The administration noted in its reports to in California. the court that 2009-10 budget legislation (Chapter 28, Statutes of 2009 [SBX3 18, ➢ AB 900 Prison Construction Plan. In Ducheny]) amended state law to: (1) make 2007, the Legislature enacted Chapter 7, ineligible for revocation to prison violations Statutes of 2007 (AB 900, Solorio), which, by certain parolees with no serious, violent, among other provisions, authorized or sex offenses; (2) increase the credits that about $6.5 billion for the construction of inmates can earn to reduce their prison additional inmate housing. The adminis- stay; (3) increase the dollar threshold for tration reports that several projects funded certain property crimes to be considered a from AB 900 are currently being planned, felony, thus making fewer offenders eligible designed, or constructed. These projects for prison; and (4) establish parolee reentry include (1) a new inmate health care courts to help prevent certain parolees facility in Stockton, (2) new mental health from returning to prison. The adminis- facilities at two existing prisons, (3) the tration also noted other legislation—such conversion of former juvenile facilities to as Chapter 608, Statutes of 2009 (SB 678, adult facilities, and (4) reentry facilities for Leno)—a separately enacted policy bill that inmates within one year of being released provides counties fiscal incentives to reduce from custody. The administration stated the number of probationers sent to prison. in its June 7 report that it would also ask ➢ Out-of-State Transfers. In October 2006, the Legislature to reconsider some of the projects that have been rejected by the Governor Schwarzenegger issued a procla- Legislature in the past. mation declaring a state of emergency on the basis that the level of overcrowding in ➢ Realignment of Certain Adult Offenders the state prison system posed a substantial and Parolees. As part of the 2011-12 health and safety risk to inmates and budget package, the Legislature enacted staff. The proclamation—which is still in Chapter 15, Statutes of 2011 (AB 109, effect today—waived certain provisions Committee on Budget) and Chapter 39, of state law, thereby allowing CDCR to Statutes of 2011 (AB 117, Committee on immediately contract with and invol- Budget). Taken together, these measures untarily transfer inmates to out-of-state shift responsibility for certain low-level correctional facilities. Subsequently, in offenders, parole violators, and parolees May 2007, the Legislature changed certain from the state to counties. The realignment provisions of state law to allow CDCR to plan, which takes effect October 1, 2011, involuntarily transfer inmates out of state. also provides counties with funding to This legislative authorization expired on carry out their new responsibilities. July 1, 2011. Nevertheless, CDCR continues to house inmates out of state pursuant to 4 Legislative Analyst’s Office www.lao.ca.gov An lAo r eporT What Effect Will These Measures these past measures are unlikely to further reduce Have on Prison Overcrowding? the inmate population and that the effect of these measures has already been captured in the trend As part of its June 7 report to the court, the data that CDCR uses to create the projections. In administration indicated that it was too soon fact, the department’s baseline projections show to know precisely how fast and at what rate that the inmate population would actually increase overcrowding would be reduced as a result of the by a few thousand inmates over the next five years. measures identified in its report. The adminis- Given these projections, it appears unlikely that tration said this would be hard to determine until the recently implemented policy changes will the realignment plan approved by the Legislature have much additional impact on reducing prison is implemented and additional AB 900 prison beds overcrowding in the future. are constructed. In its July 21 report, the admin- Reducing Contract Beds Would Increase istration provided the court with preliminary Overcrowding. In its report to the courts on June 7, estimates on how the realignment plan passed the administration noted that prior CDCR efforts by the Legislature would reduce the state prison to contract for out-of-state beds had significantly population and indicated that it would provide reduced overcrowding in the state prison system. updated population estimates within a few weeks. The Governor’s January 2011 budget plan included We concur with the administration that it is a proposal to expand the number of these beds by difficult to know with certainty how exactly the 5,000 (from 10,000 to 15,000). However, the 2011-12 various policy changes described above will affect Budget Act includes statutory language sought by overcrowding in the prison system over the next the administration that would run counter to this several years. However, we believe some conclu- increased reliance on out-of-state beds by capping sions can be drawn at this time in regard to the the number of these beds in the budget year at general magnitude of the effects on overcrowding roughly 10,000. Moreover, the administration of these measures. We discuss our major findings indicated in its June 7 report to the court that it below. would seek to reduce the number of inmates in Past Population Reduction Measures Unlikely out-of-state beds in the future. to Have Further Impacts. In its July 21 report, the In addition, the budget act included statutory administration stated that some of the 2009-10 language requiring that funding for most of the population reduction measures “will continue 4,000 in-state contract beds be eliminated upon to reduce overcrowding.” We agree that these implementation of the realignment plan. The measures have clearly had some initial impact, such administration indicates that this provision was as a reduction in the inmate population by several intended to permit the department to eliminate thousand inmates over the past two years. It also beds that would no longer be needed because these appears that the measures have slowed the ongoing facilities house the type of lower-level offenders rate of growth in the inmate population. However, who will now be kept in local custody under according to CDCR’s most recent baseline projec- realignment. tions, which do not take into account the effects of AB 900 Projects Unlikely to Add Much the realignment plan, the state’s inmate population Capacity in Next Two Years. Although it has would stay relatively flat over the next two years. been four years since the enactment of AB 900, In other words, CDCR’s projections assume that little progress has been made on the planned www.lao.ca.gov Legislative Analyst’s Office 5 An lAo r eporT construction of most of the facilities contemplated anticipated and more such offenders being sent to by the measure. The CDCR has not yet delivered state prison facilities. any AB 900 projects that have significantly Even taking these factors into account, increased inmate housing capacity. The few projects however, the realignment plan will likely shrink that are close to completion together provide about the size of the state prison population by at least 100 health care beds as well as additional treatment the low tens of thousands of inmates over the next space. According to information provided to us two years and beyond. This is because, in setting its by the department based on its current plan for criteria regarding which offenders were eligible to AB 900 construction, the design capacity of the be kept at the county level, the realignment package state’s prison system would increase by about 600 approved by the Legislature shifts a sizeable beds by July 2013 and by 13,500 beds by 2018. group of drug and property offenders and parole This means that the department’s current prison violators out of the state prison system. This means construction plan would likely have little impact the realignment plan will go a long way toward on the state’s ability to comply with the three-judge reducing overcrowding in the next several years. panel’s ruling in the next two years—although it Bottom Line: Current Plan Will Significantly could have a much larger impact in the longer term. Reduce Overcrowding, but Not Enough in Two Realignment of Offenders to Significantly Years. As we noted above, there is significant Reduce Inmate Population. According to the uncertainty regarding how quickly prison administration, the realignment of certain lower- overcrowding will be reduced in the next two level offenders, parole violators, and parolees will years. Based on the information available to us at reduce the inmate population by nearly 40,000 this time, even though the prison population will inmates upon its full implementation in 2015. be dramatically reduced through the realignment However, not all of these types of offenders are plan, it appears likely that the department will fall placed in the department’s prisons (the facilities short of meeting the court’s deadlines for reducing that fall under the order of the three-judge panel). the population of the institutions to 137.5 percent of Some of them are typically housed in contract their design capacity within two years. beds and inmate fire camps. For example, in its For example, the administration estimated July 21 report to the court, the CDCR noted that in its July 21 report to the court that roughly currently there are only roughly 32,000 inmates 32,000 lower-level inmates and parole violators in its 33 prisons who would qualify for placement currently in state prison would be reduced from under local jurisdiction under the realignment the current in-state prison population as a result of law. This means that as much as one-fifth of realignment. Even if this target were fully achieved, the inmate population reduction that results that would mean overcrowding will have been from the realignment plan may result in the reduced to 141 percent of design capacity—missing placement of fewer inmates in contract beds and the 137.5 percent benchmark. However, our fire camps, rather than resulting in a reduction in analysis indicates that it will take much longer than overcrowding in regular state prison institutions. two years for the full effects of the realignment plan In addition, potential changes in the practices of to be realized on the prison population. Thus, even district attorneys in what charges they choose to the administration’s 141 percent estimate overstates bring against criminal offenders could result in the population reduction that is likely to occur fewer offenders being shifted to the counties than within two years. 6 Legislative Analyst’s Office www.lao.ca.gov An lAo r eporT Other factors make it even less likely that the choices about how to achieve compliance with court’s population reduction deadlines can be met federal court orders at the least risk to the safety within the court’s deadline. Under the terms of of the public. The Legislature thus has the oppor- the realignment legislation, for example, counties tunity to help shape state decision making in a way would be permitted to contract back with CDCR it feels would best preserve public safety. to hold their lower-level offenders in state prison. Encourage Administration to Request More To the extent that counties exercise this option to Time to Comply. The Legislature has already taken address their jail capacity problems, it could make an important first step toward complying with the it even harder for the state to meet the federal federal court ruling by enacting Chapter 15 and targets to reduce prison overcrowding. Finally, Chapter 39 and shifting the responsibility of lower- if the number of out-of-state contract beds were level offenders and parole violators from the state to reduced in the future—as indicated in the adminis- the local governments. Our office has long argued tration’s plans—the state’s inmate population would that such a realignment of lower-level offenders likely be further above the limit set by the court, as and parolees, accompanied by appropriate state these inmates would have to be transferred back to financial resources, could lead to better criminal state-run prisons. justice system outcomes. For example, this shift will provide counties a greater incentive to ensure that LAO Recommendations to offenders released back into the community after Balance the Court’s Requirements, incarceration receive mental health and substance Public Safety, and the State’s Fiscal Concerns abuse treatment services that could break their As noted earlier, the federal court is not recurrent cycle of recidivism and parole failure. ordering the state at this time to implement specific Although this realignment of criminal justice measures to reduce overcrowding in its prisons. responsibilities recently approved by the Legislature Rather, the court is providing the state with the will significantly reduce prison overcrowding flexibility to determine how best to limit the over time, the state likely will still fall short of population in the prison system to 137.5 percent meeting the court’s requirement within two years, of design capacity within two years. Although as discussed above. Thus, we believe that it would the administration recently submitted two be appropriate for the Legislature to encourage reports to the court on how the state is reducing the administration to request that the three-judge overcrowding, these reports do not preclude the panel modify its compliance deadlines in order to Legislature from assessing the measures identified provide the state with additional time to meet the by the administration and considering additional required population limits. solutions to alleviate overcrowding. Given the dramatic policy changes the We believe this independent review by the Legislature has already approved, we believe the Legislature is particularly important, given state has a strong case to make to the courts for the possibility that the administration’s plan is a grant of more time to implement this complex likely to fall short in meeting the court-ordered realignment of responsibilities from the state population limit in the timeframe required by the to counties. The shifting of tens of thousands of court. Moreover, as the high court itself noted, inmates and parolees will require dramatic changes how the state achieves compliance with the inmate in policies and procedures for both the state and population targets involves some important policy counties. For example, the Legislature must still www.lao.ca.gov Legislative Analyst’s Office 7 An lAo r eporT determine how to permanently allocate the tax analysis may show that the deficiencies identified resources made available to counties for these by the Plata and Coleman courts would best be met new duties. Moreover, the administration has not by building additional higher-security level beds indicated to the Legislature under what terms and (such as cells) rather than dormitory space and by conditions it would allow counties to contract utilizing the program and treatment space that back with CDCR to hold inmates, or what new will be “freed up” at existing prisons as a result of arrangement if any would be made to continue the reduced overcrowding. Revisiting these decisions is operation of inmate firefighting camps. A careful reasonable, in our view, given the very significant implementation of criminal justice realignment potential future cost to the state (as much as could help minimize the potential risk to public $1.6 billion annually) to operate and pay debt safety unavoidably inherent in such major changes. service for these new facilities and the state’s severe Moreover, the state faces the prospect of having ongoing fiscal difficulties. This does not necessarily to implement further unidentified actions if the mean that these projects need to be cancelled, but federal courts were to hold the state to meeting the rather that the types of facilities CDCR plans to deadlines that are now scheduled to apply for the build may require modification. first two years. The U.S. Supreme Court suggested In view of the above, we recommend that in its recent court ruling that such a request for CDCR be directed, through statute, to report to more time to the federal three-judge panel would the Legislature upon the release of the Governor’s be reasonable. Under the circumstances discussed budget on January 10, 2012 regarding the (1) justi- above, we believe such a request is warranted. fication for each AB 900 prison project that the Reconsider the AB 900 Construction Plan. Legislature has approved but has not yet gone The administration has advised the three-judge under contract for construction and (2) possible panel that part of its plan to comply with the modifications to those projects. We further population reduction targets is to build additional recommend that the Legislature specify in statute— prison beds, potentially even including projects through urgency legislation to take effect immedi- the Legislature has already rejected. Given the ately—that CDCR could not enter into contracts significant reduction in overcrowding that will for these construction projects until it has satisfied occur in response to the court ruling, however, we this reporting requirement and the Legislature believe that CDCR should reevaluate the number, has had an opportunity to review the information. types, and scope of prison construction projects Under our approach, if the Legislature took no it plans to deliver. Instead of revising projects the additional action by February 10, 2012, the CDCR Legislature has already turned down for various would be allowed to continue with the projects as reasons, it may wish to reconsider the projects for planned. We would note that the administration which it has received legislative approval in light recently took a similar approach with respect to the of these dramatic new circumstances posed by the construction of a new condemned inmate complex high court ruling. at San Quentin State Prison, which it ultimately For example, the department currently plans decided to halt. to add dormitory beds for low-level inmates, as Maintain Out-of-State Contract Beds for well as new program space for inmate health care. Now. Using out-of-state contract facilities to house However, these types of construction projects California inmates on a long-term basis to meet may no longer be needed. This is because further the state’s institutional space needs raises several 8 Legislative Analyst’s Office www.lao.ca.gov An lAo r eporT policy and legal issues that are worthy of legis- date at least until July 1, 2015. By that time, the lative consideration and debate. For example, the Legislature would have an additional opportunity Legislature should explore: (1) whether out-of-state to evaluate the effectiveness of the out-of-state facilities do a better or worse job of rehabilitating transfer program on a policy basis. Also, during inmates than the state’s regular prison facilities, that period, it is possible that the Legislature and (2) the overall cost-effectiveness of this might choose to proceed with the construction of approach. However, we recommend that the additional prison beds that could take the place of Legislature continue (and possibly expand) the the out-of-state transfers. out-of-state program at least until such time as Conclusion CDCR is able to comply with the court-ordered inmate population reduction targets. The admin- The U.S. Supreme Court’s decision will almost istration’s push to reduce the number of these certainly result in some of the most dramatic out-of-state beds while at the same time reducing changes to the state’s prison system in decades. As overcrowding in the prisons makes little sense we have discussed in this brief, the realignment at the present time in our view. This is especially plan that the Legislature recently enacted could the case given the tight schedule of deadlines for go a long way toward meeting the court’s require- compliance with the court orders, the likelihood ments. Our analysis, however, indicates that the that realignment alone would fall short of meeting realignment plan alone is unlikely to reduce these deadlines in the short term, and the fact that overcrowding sufficiently within the two-year it will take much longer than two years for CDCR deadline set by the court. This indicates to us that, to expand its current prison capacity. as the U.S. Supreme Court suggested, a somewhat In light of the above, we recommend that in longer timeframe is warranted. In addition, we future budgetary actions, the Legislature provide recommend that the Legislature consider how CDCR with more flexibility to expand the out-of- the overcrowding reduction will affect the types state transfer program to help meet the court’s of prison facilities CDCR has planned to build. deadlines. In addition, although the department Finally, we recommend that the Legislature provide continues to involuntarily transfer inmates out of CDCR with more flexibility to use contract beds state, we would note that the state law authorizing in order to manage overcrowding, particularly it to do so expired on July 1, 2011. Given that in the near term. Addressing these issues would the out-of-state transfer program will likely be help to better plan for a dramatically reduced state necessary to meet the court’s present deadlines, we inmate population within the state’s current fiscal recommend that the Legislature extend this sunset situation. www.lao.ca.gov Legislative Analyst’s Office 9 An lAo r eporT 10 Legislative Analyst’s Office www.lao.ca.gov An lAo r eporT www.lao.ca.gov Legislative Analyst’s Office 11 An lAo r eporT 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 website at www.lao.ca.gov. The lAo is located at 925 l street, suite 1000, sacramento, CA 95814. 12 Legislative Analyst’s Office www.lao.ca.gov