Regulating California’s Prison Population

• Author: James Austin
• DOI: 10.1177/0002716215602700
• Published date: 01 March 2016
• Date: 01 March 2016
• Subject Matter: II. The Diffusion and Translation of Law and Policy Reform

84 ANNALS, AAPSS, 664, March 2016

DOI: 10.1177/0002716215602700

Regulating

California’s

Prison

Population: The

Use of Sticks

and Carrots

By

JAMES AUSTIN

602700ANN The Annals of the American AcademyRegulating California’s Prison Population

research-article2015

While many scholars and social commentators bemoan

the rise of “mass incarceration” in the United States,

few states have succeeded in significantly reducing

prison populations. Fueled by systemic changes in

penal codes, sentencing practices, and federal funding

all designed to increase the use of imprisonment, most

states have been unable to reverse the massive increase

that has transpired over the past four decades. More

alarming, there are few indications that mass incarcera-

tion will be reduced any time soon. There are a few

exceptions, with California being one. Since 2007,

California’s prison population has dropped by over

43,000 prisoners. Reductions have also been achieved

in the state parole (82,000) and probation (15,000)

populations. Today there are 146,000 fewer Californians

in prison, jail, parole, or probation. Initially driven

largely by a period of lengthy litigation, a rare federal

court order to depopulate, several other reforms,

reflecting a sticks and carrots approach, were intro-

duced beginning in 2007 to lower imprisonment rates.

Among them was “Realignment,” which relocated

approximately 27,000 state prisoners to the counties.

However, it required another stick in the form of a bal-

lot initiative (Proposition 47) to further reduce the

prison population and meet compliance with the fed-

eral court order. In the end, it was the externally

imposed dual “sticks” of litigation and a ballot initiative

that proved to be the driving forces in reducing

California’s use of mass incarceration.

Keywords: mass incarceration; Realignment; regula-

tion; financial incentives

The Use of Regulation to Govern

and Reform Institutional and

Individual Behavior

There is considerable interest in the use of

government-based regulation, often in the form

James Austin is the President of the JFA Institute.

Before taking this position, he was codirector of the

Institute on Crime, Justice and Corrections at the

George Washington University in Washington, D.C.,

Executive Vice President of the National Council on

Crime and Delinquency, and a Correctional Sociologist

for the Illinois Department of Corrections.

Correspondence: jfainstitute@gmail.com

REGULATING CALIFORNIA’S PRISON POPULATION 85

of law, legislation, and administrative rules, to govern and reform social and insti-

tutional behavior. Increasingly, modern society is relying on formal regulatory

systems to influence business and social institutions as well as individuals.

Greater reliance on formal regulatory systems can be traced to the New Deal,

where the federal government began to regulate the workplace in terms of the

40-hour work week, banning child labor, unemployment compensation, Social

Security, and health insurance, to name a few. Most recently, in the world of

finance, the Great Recession of 2008 has fostered considerable debate on

whether it was caused by a lack of oversight by federal regulatory agencies in the

marketplace. Now there is concern about whether increased regulation is exces-

sive and whether an unregulated “marketplace” is the most efficient model for

fostering the common good (Silbey 2013).

In the area of the environment, there is considerable debate on how best to

control climate change, either through complex cap-and-trade incentives or let-

ting the marketplace generate the most efficient solution(s). Here again the

debate is over whether regulation by the state to control pollution and the poten-

tial damaging effects of climate change will be effective.

Regulation (via legislation, litigation, or administrative rule) is also used to

restructure or reform current individual and institutional behavior. For example,

the federal tax code is used to either encourage or discourage economic activity

and profits for certain sectors of the economy. If we want to encourage people to

buy houses, we provide tax credits on the mortgage interest they pay. If we want

people to buy solar energy systems or purchase more energy efficient appliances

and electric cars, we provide tax credits. If we want people to reduce smoking,

we impose high taxes on cigarettes to make them less affordable.

The historic use of mental health institutions or asylums to control and man-

age mental illness can also be seen as a regulatory issue. There has been a major

reduction in the number of people institutionalized for such reasons. As reported

by Spelman (2009) and Gottschalk (2009), the massive decarceration of state

hospitals was the result of two developments. First was the successful invention

of mind-altering drugs such as Thorazine that allowed the mentally ill to be

treated in community-based settings. A second factor was litigation that chal-

lenged the use of patients as workers without pay.

In 1973, a federal district court ruled (in Souder v. Brennan) that patients in

mental health institutions must be considered employees and paid the minimum

wage required by the Fair Labor Standards Act of 1938 whenever they per-

formed any activity that conferred an economic benefit on an institution. Based

on this ruling and other developments, the economic viability of many state men-

tal institutions was diminished as patients no longer worked for free. This

included passage of Medicaid, with the federal government subsidizing the care

of the mentally ill in local hospitals and nursing homes. These developments

reduced the state mental health population from about 560,000 in the 1950s to

under 40,000 (U.S. Census Bureau 2015).

This article uses the lens of regulation to analyze efforts to downsize

California’s prison system and the associated challenges of inducing compliance

across counties. I proceed, first, by providing background on the rise of mass