Norimitsu Onishi takes a sobering look at California's emerging "realigment" policy in this morning's NYTimes (read it here). The state's major response to the humanitarian disaster in its state prisons and the Supreme Court confirmed order to reduce the prison population by approximately 40,000 prisoners, has been to channel many people convicted of less serious felonies or found to have violated their parole from state prison to counties who have the legal authority to incarcerate them in jail or to impose alternative sanctions. Along with this mandate came a stream of state revenue allocated to counties in proportion to their prisoner burden and open ended in terms of what it can be spent on.
Onishi's reporting suggests that counties are breaking in one of two ways in their dominant response; either expanding jails in anticipation of having to permanently incarcerate a far larger population than in the past, or investing in re-entry programs to help released state prisoners avoid future crime and arrests, and enhanced programming to make probation more successful as an alternative to incarceration for felony offenses. The divide is largely between coastal urban counties which are focusing on re-entry and alternatives, and rural counties, especially in the state's sprawling central valley, which is investing in reopening jail space.
The stakes are high, many county jails are already under court order for over crowding which means that incoming prisoners must be balanced with early release for current inmates in jails (although low hanging fruit through better pre-trial release procedures is an obvious partial solution). Others are not under order but are already approaching unconstitutional conditions which are likely to occur with added inmates. Moreover, even new jails are likely create severe human rights problems if used for prolonged incarceration. The great lesson of California's correctional health care crisis is the toxic relationship between incarceration and chronic illnesses (including importantly mental illness). If counties try to reproduce mass incarceration policies at the local level, the results could be even worst (especially in rural counties which are already suffering from high levels of chronic illness and poor medical service).
On the other side, the revitalization of rehabilitation as a legitimate penal objective (as opposed to California's extreme model of total incapacitation) is being pressed into early service by realignment and may find itself unfairly discredited and de-legitimized. The urban counties taking the biggest strides in experimenting with alternatives are also those most vulnerable to upward swings in violent crimes (homicides, aggravated assaults, armed robberies) that have historically altered not only the view people in that county, but in the whole state.
The best thing about re-alignment is that it will (and is) incentivizing a serious stake-holder conversation at the county level, one which sounds likely to be more purple than red or blue (to channel our President here). I have faith that this local conversation will be less toxic than the state level one we have had for forty years. However, we cannot afford to let the state actors off the hook just yet. Not only must the federal courts keep the focus (and the ultimate legal responsibility) on the state of California, citizens must both get involved at the county level and begin to demand accountability (as well as money) from the state. Counties and citizens alike have a stake in making sure that the policies which led to industrial scale torture through deliberate indifference to medical and mental health in California's prisons and to a deeply entrenched racist prison gang system which continues to menace communities throughout the state, are fully aired. Don't let state leaders get away with leaving the blame for both the ongoing crisis and the next crime wave on county sheriffs and re-entry workers.
How to stop them? I believe there are two steps necessary to prevent a recurrence of the present disaster. First, create a truth and reconciliation commission to study the causes and consequences of mass incarceration in California. Second, create a California Commission for the Prevention of Torture, or Inhuman and Degrading Treatment or Punishment, modeled after the Council of Europe's Committee for the Prevention of Torture, or Inhuman and Degrading Treatment or Punishment and the UN Committee against Torture with the power to enter and inspect any prison, jail, or re-entry facility (as well as any other state funded place of detention) in the state of California, at any time, day or night, without prior notice, and with authority to report to the Governor and the legislature on the proximity of current conditions to torture, or inhuman and degrading treatment.