Tough on Crime (on the State’s Dime): How Violent Crime Does Not Drive California Counties’ Incarceration Rates—and Why it Should

• Publication year: 2010

Georgia State University Law Review

Volume 28 . ,

Article 4

Issue 4 Summer 2012

4-3-2013

Tough on Crime (On The State's Dime): How Violent Crime Does Not Drive California Counties' Incarceration Rates—and Why It Should

W David Ball

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Recommended Citation

Ball, W. David (2011) "Tough on Crime (On The State's Dime): How Violent Crime Does Not Drive California Counties' Incarceration Rates—and Why It Should," Georgia State University Law Review: Vol. 28: Iss. 4, Article 4. Available at: http://digitalarchive.gsu.edu/gsulr/vol28/iss4/4

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TOUGH ON CRIME (ON THE STATE'S DIME):

HOW VIOLENT CRIME DOES NOT DRIVE CALIFORNIA COUNTIES' INCARCERATION RATES—AND WHY IT SHOULD

W. David Ball*

Abstract

California's prisons are dangerously and unconstitutionally overcrowded; as a result of the Supreme Court's recent decision in Plata v. Schwarzenegger, the state must act to reduce its prison population or face court-ordered prisoner releases. The state's plans to reduce overcrowding are centered around what it calls criminal justice "realignment," whereby California will divert some sentenced offenders away from state facilities towards county facilities. The plan faces opposition from county officials, who argue that the state is pushing its problem onto the counties.

But what if the counties are actually responsible for state prison overcrowding? I argue that California's prison overcrowding is due in large part to county decisions about how to deal with crime. Using data from 2000-2009, I show that California's counties use state prison resources at dramatically different rates, and, moreover, that the counties which use state prisons the most have below-average crime rates. Viewed this way, the state is simply returning the problem to its source and forcing counties to pay for their criminal justice policies.

Assistant Professor, Santa Clara Law School. This Article was written with the support of the Santa Clara School of Law Faculty Fund, and it greatly benefited from the insights of several people, though, of course, any errors are mine. First, I wish to thank participants in the Stanford Criminal Justice Center Executive Sessions (2008) for opening my eyes to the ways in which local actors affect state criminal justice populations and policies. Second, I thank participants in faculty workshops at the University of Oregon and Santa Clara. I would also like to thank several individuals for their helpful comments: Tim Coxon, Dan Ho, Naomi Levy, Ian McAllister-Nevins, Debbie Mukamal, Joan Petersilia., Karthick Ramakrishnan, and Bob Weisberg. I got great research assistance from Nik Warrior and Eugene Lee, and truly above-and-beyond research assistance from Vincent Ang. Finally, I would like to thank my father, Byrd Ball, for his insights and inspiration in helping me see the story in the numbers. Thanks Dad!

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

The contribution this Article makes, then, is twofold. First, it suggests that incarceration in state prisons is one policy choice among many, not an inexorable reaction to violent crime. Counties can and do make different choices about how to respond to violent crime, including the extent to which they use state prisons. Second, this Article demonstrates why localities are crucial—and critically underexamined—contributors to state prison populations. Decisions are made at local levels about prosecution, investigation, plea bargaining, and sentencing, and these decisions are made by officials who are either elected locally (DAs, judges, and sheriffs) or appointed locally (police and probation officers). Local policies and policymakers affect the state's corrections budget, even though the state has no say in designing or implementing these policies. State officials must take these local differences into account, and create incentives for counties to behave differently.

The problem is that it is difficult to distinguish between justifiable, crime-driven incarceration and optional, policy-driven incarceration. I propose a new metric for distinguishing between these two types of incarceration, one which defines justified incarceration in terms of violent crime. This would allow the state to manage local usage of state prison resources without either penalizing crime-ridden areas or rewarding prison-happy ones.

This Article is the first of two articles dealing with the state/county prison relationship. While this Article quantifies the ways in which the extent of local prison admissions is not necessarily a function of the violent crime rate, a second Article will examine whether, given these differences, it makes sense for the state to subsidize county commitments to prison.

Introduction.................................................................................990

A. The Coverage Model...........................................................998

B. Why Coverage Matters....................................................1002

I. Sources, Limitations, and Methods of the Study..............1004

A. Sources.............................................................................1004

B. Limitations of the Study...................................................1010

2012] TOUGH ON CRIME 989

C. Methods............................................................................1014

II. Violent Crime Rates and New Felon Admission Rates ....1018

A. The State.............................................................................1018

B. Violent Crime and NFA in the Four State Segments.......1022

1. High Use Counties: Dominated by NFA Surplus Counties......................................................................1025

2. High Surplus Revisited: The Rich Four and the Poor Four............................................................................1027

3. Low Use Counties: The Convergence of Low Coverage and NFA Deficits.......................................1029

4. Low Coverage and NFA Deficits Divided by

Income: The High Five and the Low Six....................1031

5. Los Angeles.................................................................1033

6. Middle Use Counties..................................................1034

III. Alternative Explanations..................................................1035

A. Offender Mix....................................................................1036

B. Effectiveness.......................................................................1039

C. Local Dispositions ........................................................... 1045

1. Jail..............................................................................1045

2. Probation....................................................................1048

D. Local Resources...............................................................1050

E. Politics .............................................................................1054

F. Reverse Causality: Is Low Crime the Product of a High

NFA? ................................................................................1057

IV. Fiscal Implications...............................................................1059

A. Subsidy by Segment..........................................................1059

B. The Role of Sentence Lengths ..........................................1065

C. Recalculating State Coverage Rates by Segment ............1069

V. POLICY IMPLICATIONS.......................................................1072

A. Realignment, Prisoner Release........................................1073

B. De-Subsidizing Prison, Re-Subsidizing Probation ..........1075

C. State Population Control and Determinate Sentencing...1076

Glossary......................................................................................1079

Appendix A: List of County Segments.....................................1081

Appendix B: Map of County Segments.....................................1082

990 georgia state university law review [vol. 28:4

Introduction

California's prisons are dangerously and unconstitutionally overcrowded.¹ The state must find a way to cut its prison population by tens of thousands of prisoners or federal courts will force California to release them.² The state has long conceded that the conditions in its prisons violate the Eighth Amendment's prohibition on cruel and unusual punishment,³ but it has struggled to find ways to sufficiently reduce overcrowding.⁴ Last year, the state passed AB 109, a bill which radically reconfigured the relationship between local governments and the state prison system.⁵ AB 109, Criminal Justice Alignment, shifted many sentences from the state level to the county level.⁶ Local reaction to the plan has been mixed. Localities want to control the design and implementation of criminal justice policies, but they do not want to foot the bill.⁷ Some members of the California assembly opposed to AB 109 see the overcrowding problem as a failure of state leadership and fear that realignment will result in threats to public safety.⁸

1. Brown v. Plata, 131 S. Ct. 1910, 1923 (2011).

2. Id. ("[A]bsent compliance through new construction, out-of-state transfers, or other means . . . the State will be required to release some number of prisoners before their full sentences have been served.").

3. Id. at 1926.

4. Id. at 1927-28. I note that the state reduced its prison population by 9,000 during the pendency of its appeal to the Supreme Court. Id. at 1923.

5. AB 109, 2011-2012 State Legis., (Cal. 2011). Because the bill changes so many individual statutes, I have also cited to the Legislative Counsel's Digest. Comm. on Bud...