Alternatives to Incarceration: Why Is California Lagging Behind?

• Publication year: 2010

Georgia State University Law Review

Volume 28 . , „

Article 10

Issue 4 Summer 2012

4-3-2013

Alternatives to Incarceration: Why Is California Lagging Behind?

Michael Vitiello

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Recommended Citation

Vitiello, Michael (2011) 'Alternatives to Incarceration: Why Is California Lagging Behind?," Georgia State University Law Review: Vol. 28: Iss. 4, Article 10.

Available at: http://digitalarchive.gsu.edu/gsulr/vol28/iss4/10

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ALTERNATIVES TO INCARCERATION: WHY IS CALIFORNIA LAGGING BEHIND?

Michael Vitiello*

I. Introduction

Until quite recently, America was on an incarceration binge for almost forty years.¹ While the sharp increase in incarceration is almost certainly one cause of reduced crime rates in recent years,² a broad consensus has emerged that we incarcerate too many people to the point of diminishing returns.³ Further, commentators across a broad political spectrum recognize that alternatives to incarceration are necessary, especially in light of the current budget crises in many states.⁴ They also agree that states can protect the public with sound sentencing policies while saving money by resorting to less costly alternatives to incarceration.⁵

Critics of excessive incarceration include liberals,⁶ centrists,⁷ and conservatives⁸ outside the political arena. Proposals for reform vary, but many of their proposals share broad outlines for reform.⁹ In light of this consensus, one might have expected that sentencing reform

* Distinguished Professor and Scholar, the University of the Pacific McGeorge School of Law; University of Pennsylvania, J.D., 1974; Swarthmore College, B.A., 1969. Special thanks to my research assistants R.J. Cooper and Ashley Connell for their research efforts and to Ashley for organizing their efforts.

1. Pew Center on the States, Pew Charitable Trusts, State of Recidivism: The Revolving Door of America's Prisons (2011), available at http://www.pewtrusts.org/uploadedFiles/wwwpewtrustsorg/Reports/sentencing_and_corrections/State_ Recidivism_Revolving_Door_America_Prisons%20.pdf.

2. Franklin E. Zimring, The Great American Crime Decline 56 (2007).

3. See infra notes 74-119 and accompanying text.

4. See infra Part III.

5. See infra notes 74-119, Part III.

6. Michael Vitiello & Clark Kelso, A Proposal for a Wholesale Reform of California's Sentencing Practice and Policy, 38 Loy. L.A. L. Rev. 903, 952 (2004).

7. Background/Mission/Approach, Pew Center on the States, http://www.pewcenteronthestates.org/about_background.aspx (last visited Dec. 19, 2011).

8. What's Gone Wrong, Right on Crime, http://www.rightoncrime.com/the-criminal-justice-challenge/whats-gone-wrong/ (last visited Dec. 19, 2011).

9. See infra notes 77-112 and accompanying text.

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would have been easy to achieve nationwide. That has simply not been the case.¹⁰

Many of us predicted that a weak economy would lead to sentencing reform.¹¹ In some states, that has begun to take place. In recent years, both very conservative states, like Mississippi and Texas, and liberal states, like Washington, have achieved modest and sensible reforms.¹² At least, early reports suggest that public safety has not been sacrificed.¹³

California has the largest state prison system in the United States¹⁴ and a gaping hole in its budget.¹⁵ As California's economic crisis has become evident, some politicians have tried to advance modest reform proposals, including recourse to a sentencing commission¹⁶ and compassionate release of older prisoners.¹⁷ But California politicians have largely rejected proposals that have proven successful elsewhere.¹⁸ Federal court intervention, affirmed by a divided Supreme Court, has kept some pressure on California politicians to reform a badly designed system.¹⁹ Recent legislation advanced by Governor Brown is a partial and relatively tame

10. See infra Part VI.

11. See Vitiello & Kelso, supra note 6, at 952; Michael Santos, Economic Crisis Opens Possibilities for Prison Reform, Prison News Blog (Mar. 4, 2009), http://prisonnewsblog.com/2009/03/economic-crisis-opens-possibilities-for-prison-reform/.

12. See infra Part III.

13. Id.

14. Sonja Steptoe, California's Growing Prison Crisis, Time (June 21, 2007),

http://www.time.com/time/nation/article/0,8599,1635592,00.html.

15. Claire Suddath, Spotlight: California's Budget Crisis, Time (July 27, 2009), http://www.time.com/time/magazine/article/0,9171,1910985-1,00.html. Complicating the problem for the state is the fact that the prison system consumes about eleven percent of discretionary spending. Randal C. Archibold, California, in Financial Crisis, Opens Doors, N.Y. Times (Mar. 23, 2010), http://www.nytimes.com/2010/03/24/us/24calprisons.html. Thus, its difficulty in reducing those costs has forced the state to reduce funds for education and safety net programs. Id.

16. Marisa Lagos & Wyatt Buchanan, Sen. Mark Leno Pushes for State Sentencing Panel, S.F. Chron. (Aug. 6, 2011), http://articles.sfgate.com/2011-08-06/bay-area/29857542_1_sentencing-panel-sentencing-commission-state-senator.

17. Promoting Inmate Rehabilitation and Successful Release Planning: Testimony Before the H. Subcomm. on Crime, Terrorism, and Homeland Security, 110th Cong. 42-56 (Dec. 6, 2007) [hereinafter Testimony Before the H. Subcomm.] (statement of Jonathan Turley).

18. See infra Part V.

19. See Brown v. Plata, 131 S. Ct. 1910 (2011).

2012] ALTERNATIVES TO INCARCERATION 1275

response to the problem.²⁰ But the state missed a chance to enact a more sweeping reform.²¹

This Article explores five themes. First, it discusses the consensus that has emerged among those calling for reform.²² Second, it examines how some states have responded to the call for reform.²³ Third, it reviews briefly the Court's ruling in Brown v. Plata,²⁴ upholding the decision of a three-judge panel, requiring California to reduce the population of its prisons to comply with the Eighth Amendment.²⁵ Fourth, it explores California's efforts to reform its prison overcrowding, especially in response to the federal court intervention in its prison health care system.²⁶ Fifth, it examines the unique situation in California: despite its liberalism, it has remained remarkably resistant to reform.²⁷ Specifically, this article examines the role of the prison guards' union,²⁸ victims' rights groups,²⁹ myths surrounding the effect of Three Strikes,³⁰ and term limits and a legislature consisting largely of safe districts³¹ in frustrating reform. Some commentators assumed that the federal court order in the prison health care cases would give California politicians cover, allowing them to back sensible reforms.³² Governor Brown's realignment plan is a step towards broad reform, but quite tame when compared to other states and the size of California's larger problems.

20. See 2011 Cal. Legis. Serv. Ch. 15 (West); infra notes 340-41 and accompanying text.

21. See infra notes 215-53 and accompanying text.

22. See infra Part II.

23. See infra Part III.

24. Brown, 131 S. Ct. at 1910.

25. See infra Part IV.

26. See infra Part V.

27. See infra Part VI.

28. See infra notes 278-97 and accompanying text.

29. See infra notes 289-313 and accompanying text.

30. See infra notes 314-19 and accompanying text; 1994 Cal. Stat. Ch. 12, sec. 1 (enacting Cal. Penal Code § 667), and the initiative, Proposition 184. See California Ballot Pamphlet, General Election (Nov. 8, 1994). As developed at notes 315-18, Three Strikes' proponents insist that crime rates were rising until enactment of Three Strikes, at which point, crime rates began their precipitous decline. They could argue that point only by skewing the data.

31 . See infra notes 321-35 and accompanying text.

32. Marie Gottschalk, Prison Overcrowding and Brown v. Plata, New Republic (June 8, 2011), http://www.tnr.com/article/politics/89575/prison-overcrowding-brown-plata-supreme-court-california.

1276 GEORGIA STATE UNIVERSITY LAW REVIEW [Vol. 28:4

As explored below, California has missed an opportunity for more meaningful reform.³³

II. A National Consensus

Sentencing reform does occur in the United States. For example, between the early 1970s through the mid-1980s, groups on the center, left, and right all called for sentencing reform.³⁴ While the consensus began to unravel after reform took hold,³⁵ it led to an almost universal abandonment of indeterminate sentencing.³⁶ A similar consensus seems to be emerging today. This section reviews the consensus that emerged during the 1960s, '70s, and '80s and then compares it with current reform efforts.

Students of criminal justice today would have difficulty recognizing the dominant sentencing scheme in place during the 1950s and 1960s. Based on a rehabilitative model,³⁷ indeterminate sentencing gave judges wide latitude in imposing sentences³⁸ and left a great deal of discretion to parole boards to set a release date for offenders.³⁹ The prevailing model, grounded in faith of psychiatry and science,⁴⁰ was so integrated into the legal culture that it influenced the Supreme Court's case law in cases like Robinson v. California⁴¹ and Powell v. Texas⁴⁴² For example, in Robinson, the

33. See infra notes 213-51 and accompanying text.

34. Michael Vitiello, Reconsidering Rehabilitation, 65 Tul. L. Rev. 1011, 1014-15 (1991).

35. Id. at 1029-31.

36. Indeterminate sentencing was abandoned at the national level by the Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1988 (1984) (codified as amended at 18 U.S.C. §§ 3551-3586, 36213625, 3742 (2006) and 28 U.S.C. §§ 991-998 (2006)). Since the late 1970s, state after state has

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