The Law‐Before: Legacies and Gaps in Penal Reform

Date01 December 2015
Published date01 December 2015
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:
Law & Society Review, Volume 49, Number 4 (2015)
C2015 Law and Society Association. All rights reserved.
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
Verma 849

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