The Law‐Before: Legacies and Gaps in Penal Reform

• Date: 01 December 2015
• Published date: 01 December 2015
• DOI: http://doi.org/10.1111/lasr.12163

The Law-Before: Legacies and Gaps in

Penal Reform

Anjuli Verma

This article introduces the law-before as an analytic tool for enhancing explana-

tions of legal reform. Based on an integration of neo-institutional law and

organizations studies and punishment studies of local variation in penal policy,

I define the law-before as the past organizational practices and power arrange-

ments that precede law-on-the-books and shape present day implementation.

I utilize the law-before as a heuristic to investigate the legacy effects of varia-

tions in local practice on the implementation of the prison downsizing law, AB

109, or “Realignment,” in California. I analyze organizational documents pro-

duced by county practitioners in the aftermath of AB 109’s enactment in 2011

as empirical windows into how actors shape the meaning of law in local set-

tings. I find that practitioners in counties with divergent historical imprison-

ment patterns enact four processes (overwriting or underwriting law, selective

magnification, and selective siting) to arrive at distinct interpretations of AB 109

as mandating system-wide decarceration or the relocation of incarceration

from state prisons to county jails. Although my data do not speak to the ulti-

mate implementation of AB 109, the processes revealed have practical impli-

cations for the reform goal of decarceration by rationalizing distinct resource

allocations at an early stage in the implementation process.

Despite vast expenditures on U.S. prison construction in the

late twentieth century, infrastructure has not kept pace with the

punishment imperatives of mass incarceration. Dangerously

Author’s note: The preparation of this article was made possible with support from UC

Irvine’s Center in Law, Society and Culture and its Microsemi/Peterson Fellowship. The

author extends special thanks to the Law & Society Review editors and reviewers for their

careful feedback. This manuscript also received extensive comments from Mona Lynch

and students in the winter 2012 “Analyzing Documents in Sociolegal Research” methods

seminar, Valerie Jenness, Carroll Seron, Shauhin Talesh, Jonathan Simon, Margo

Schlanger, Geoff Ward, Bryan Sykes and participants in the National Science Foundation-

sponsored Realigning California Corrections workshop (October 2014) and UC Irvine’s

Socio-Legal Studies Workshop. The author also wishes to acknowledge W. David Ball for

publishing the “Tough on Crime” dataset and Allen Hopper at the ACLUfor help obtain-

ing the documents analyzed. All errors are the author’s alone.

Please direct all correspondence to Anjuli Verma, Department of Criminology, Law

and Society, 2340 Social Ecology II, University of California, Irvine, Irvine, CA 92697-

7080; e-mail: acverma@uci.edu.

Law & Society Review, Volume 49, Number 4 (2015)

V

C2015 Law and Society Association. All rights reserved.

847

overcrowded confinement conditions remain widespread in pris-

ons and jails, raising recurring dilemmas about the judicial over-

sight, and legal regulation of correctional policy. Perhaps no state

better exemplifies the prison overcrowding crisis than California,

which operates one of the nation’s and western world’s largest

prison systems. After several decades of rapid growth, by 2011

the state incarcerated nearly twice the number of people its pris-

ons were designed to hold. Despite these levels, California’s

recidivism rate remained one of the highest in the nation;

roughly 60 percent of those released from prison reoffended

within three years (Pew Center on the States 2011). Such

extreme prison overcrowding combined with its lack of crime

control efficacy led to historic intervention by the U.S. Supreme

Court in Brown v. Plata (2011). In a 5–4 decision, the Plata court

found California’s conditions of confinement to violate the Eighth

Amendment’s prohibition on cruel and unusual punishment and

ordered the state to reduce its prison population to 137.5 percent

of capacity (or, by roughly 40,000 people) within two years. Jus-

tice Scalia decried the order as “the most radical injunction issued

by a court in our Nation’s history” (Brown v. Plata 2011: 1 of Sca-

lia dissent).

Brown v. Plata has understandably been characterized as a

“remarkable” case (Simon 2014). Even more remarkable is the

state of California’s response. While states have often sought to

comply with population cap orders by expanding prison capacity

(e.g., Feeley and Rubin 1998; Guetzkow and Schoon 2015;

Schoenfeld 2010), California enacted legislation known as “Public

Safety Realignment,” or Assembly Bill 109 (AB 109 2011), which

localized the onus of compliance to individual counties (Schlanger

2013). AB 109 devolves the supervision of most nonviolent

offenders to the county level and, notably, delegates unprece-

dented discretion to local practitioners to either incarcerate those

previously sent to state prison in local jails or to use alternative,

community-based sanctions that do not entail incarceration (Pen.

Code §1170(h); §17.5). California’s unique response, thus, raises

the possibility of decarceration—rather than prison expansion—

as a viable mode of legal compliance with court intervention for

the first time in decades.

In a keynote address to the National Institute of Justice, crim-

inologist Joan Petersilia (2012) said this about California’s

Realignment: “It is the biggest criminal justice experiment ever

conducted in America, and most people don’t even know it’s hap-

pening.” The Economist (May 19, 2012) has also called AB 109

“one of the great experiments in American incarceration policy,”

in part due to concerns about its effects on future crime levels,

but also because whether it will in fact lead to decarceration, as

848 The Law-Before

many reformers have hoped (e.g., ACLU 2012), remains an open

question. Emerging awareness of the underlying variation in Cali-

fornia counties’ historical reliance on the state prison system has

raised concerns that the relatively small number of historically

high prison using counties—counties that disproportionately

drove the state’s prison overcrowding crisis in the first place (e.g.,

Ball 2012)—will use the discretion afforded to them under

Realignment to either subvert the law’s central mandates or to

simply relocate the sites of incarceration from state prison cells to

local jail cells (Lynch 2013; Petersilia and Snyder 2013).

Realignment’s “experiment” has attracted interest from public

policy scholars (e.g., Bird and Grattet 2014; Lofstrom and Raphael

2013; Males and Goldstein 2014) and legal scholars (e.g., Ball

2012; Schlanger 2013; Zimring 2014). However, this is the first

study to empirically address the sociolegal questions raised by this

distinctive form of regulation, which renders legal compliance

possible because of—not despite—local variations in front-line

implementation. I analyze organizational documents known as

“Realignment plans” produced by county officials in the aftermath

of the Plata order and AB 109’s enactment in 2011 as empirical

windows into local legal interpretation and compliance. I compare

plans from groups of historically high and low prison using coun-

ties to answer emerging questions about AB 109’s interpretation

among counties with divergent histories of state prison reliance.

I find that historically low imprisoning counties interpret the

law as mandating overall decarceration in both state prisons and

county jails, while historically high imprisoning counties interpret

the law as mandating a relocation of the predominant site of incar-

ceration from state prisons to county jails. Beyond providing ini-

tial empirical support for the concern that practitioners in some

locales will subvert the reform goal of decarceration under AB

109, I identify mechanisms of legal translation that begin to

shape divergent understandings of the law in the early planning

stages of implementation. Specifically, I trace four distinct inter-

pretative processes in the plans: overwriting law, in which local

actors render law’s authorship invisible by masking the legally

mandated origin of changes to local policy and practice; under-

writing law, which alternatively entails openly relying on law’s

force to substantiate local policy changes; selective magnification,in

which local actors emphasize certain statutory components to the

exclusion of others; and selective siting, which locates the site of

the problem law is meant to solve in ways that render certain

interpretations coherent while rendering others illogical. These

interpretive processes in turn reveal competing field-level logics

about law and legal regulation with respect to both the funda-

mental legitimacy of law to regulate local penal practice (whether

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