How Do You Eat an Elephant? Reducing Mass Incarceration in California One Small Bite at a Time

• Date: 01 March 2016
• Author: Barry Krisberg
• Published date: 01 March 2016
• DOI: 10.1177/0002716215600407
• Subject Matter: II. The Diffusion and Translation of Law and Policy Reform

136 ANNALS, AAPSS, 664, March 2016

DOI: 10.1177/0002716215600407

How Do You

Eat an

Elephant?

Reducing Mass

Incarceration in

California One

Small Bite at a

Time

By

BARRY KRISBERG

600407ANN The Annals of the American AcademyHow Do You Eat an Elephant?

research-article2015

While most states are considering reducing the impact

of mass incarceration in their prison systems, few states

have faced a larger challenge than California, and few

states have reduced their convict and parole population

as much as California. Federal court intervention and a

series of legislative and voter-initiated reforms in

California have changed the landscape in one of the

nation’s largest criminal justice systems. This article

draws on a variety of data sources to explore a poten-

tially historic moment in the quest to end mass incar-

ceration; it remains to be seen whether the public

debate over appropriate punishments changed among

criminal justice interest groups, such as corrections

officers, law enforcement, prosecutors, the judiciary,

victim advocates, and liberal and conservative spokes-

persons. Has the fear of crime among the citizenry

changed, and has the public embraced a different

response to lawbreakers? There have been important

law changes that reduce some felonies to lesser crimes

and incentives to punish offenders in local corrections

rather than state prisons (known as Realignment), but

genuine reductions in mass incarceration will require

even more actions. Based on my review of California

trends in crime, punishment, and public opinion, I

argue that even while there will likely be more progress

in decriminalizing drug crimes and other nonviolent

crimes, public attitudes toward more serious offenders

will be decisive in forecasting the future of mass impris-

onment and the California prison gulag. At present,

California is pursuing an incremental approach to

reducing the numbers in prison for very serious crimes.

Reform of prisons is likely to consist of small bites of

change in sentencing and parole policies.

Keywords: mass incarceration; sentencing policy;

Brown v. Plata; California prisons

Policy Framework

A

serious national discussion is occurring

about the importance of reducing mass

incarceration. This conversation has reached

the highest levels of the U.S. government and

Barry Krisberg is a senior fellow at the Earl Warren

Institute at the University of California, Berkeley, Law

School.

Correspondence: bkrisberg@law.berkeley.edu

HOW DO YOU EAT AN ELEPHANT? 137

has growing support in the Congress among both Republicans and Democrats

(Baker 2015). A parallel reform movement is under way or in beginning stages in

many states and localities. Several major philanthropic groups have established

reducing mass incarceration as a top priority for their charitable activities.

While a powerful consensus urging the reduction of incarceration is building,

the pathways to reducing prison and jail populations are complex in legal, opera-

tional, and political aspects. Because of the wide variety of state laws and sentenc-

ing structures, the solutions to mass incarceration will need to be particular to

jurisdictional issues. Each locale will need to assess how the rapid growth of

incarceration occurred and the characteristics of those who remain behind prison

bars. It will also be vital to examine the relative outcomes of reform strategies

within the executive, legislative, and judicial arenas. Related to this assessment of

the methods to roll back mass incarceration is a candid analysis of the “politics”

of reducing current levels of imprisonment. Included in this political science

analysis will be topics such as the fear of crime, fiscal constraints on expanding

prison capacity, public opinion toward the best response to drug offenders and

other nonviolent lawbreakers, as well as the influence of criminal justice interest

groups in shaping new policies.

The goal of this article is to delineate the actions being taken in California to

reduce the size of its prison population. In recent years, California had the high-

est number of prison inmates in the United States and was subject to a series of

federal court mandates to expeditiously reduce the level of crowing in its prisons.

The United States Supreme Court placed a limit on the extent of permissible

institutional crowding and specified that some inmates would be released early if

the state could not meet the population goals. The Golden State has begun to

implement several innovative approaches to reducing mass incarceration. As

such, California offers important lessons to other states. In what follows, I will

trace the major policy forces that led to a rapid and substantial growth in the

prison population, look at the attributes of those remaining in California prisons,

and examine current steps being taken to meet court mandates to reduce prison

crowding. As noted earlier, many states are considering similar reforms to their

sentencing and corrections systems. While there are unique aspects of the

California story, there is much that can be learned from this case study.

The primary focus in recent years in California criminal justice has been a dra-

matic shift in responsibility from the state to the counties to manage minor offend-

ers. There has also been a series of ballot measures that have reduced penalties

for many drug crimes. The ability of California voters to change its criminal justice

policies via voter initiative is not common across the nation, and no state has used

the electoral route to alter sentencing rules more than California.

The reforms already under way in California have resulted in approximately

40,000 fewer state prisoners and over 100,000 fewer persons under parole super-

vision. The current national drop in state prisoners is virtually all attributable to

California. Despite this impressive progress to reverse mass incarceration, the

Golden State still has over 130,000 prisoners and its state facilities remain

severely crowded. This speaks to the magnitude of the challenge to meaningfully

reverse the past four decades of extraordinary growth in the prison population.