California's Realignment: Real Prison Reform or Shell Game?

Joan Petersilia, the Adelbert Sweet Professor of Law at Stanford Law School and Co-director of the Stanford Criminal Justice Center has coauthored a report with Jessica Snyder, a third-year law student. The two distinguished scholars have led a team of social scientists to explore California's controversial prison reform legislation known as realignment, or AB 109. The title of their report, "Looking Past the Hype: 10 Questions Everyone Should Be Asking About California's Prison Realignment," will be published in the April edition of "The California Journal of Politics and Policy." I've reviewed the informative report and I'll provide Huffington Post readers with a series of articles that offer an inside look at what I've learned.

AB 109 is "the biggest penal experiment in modern history." The legislation went into effect on October 2, 2011. During the past 16 months, realignment legislation has resulted in the altering of sentences for more than 100,000 offenders. By next October, California will have spent more than $2 billion to implement the law. Many billions more will flow into the realignment initiative in years to come.

Despite the billions in spending, the legislature has not allocated a single cent for a statewide evaluation on the effectiveness of realignment. Without that funding for research, Professor Petersilia and Ms. Snyder warn that neither citizens, scholars, nor practitioners will know the impact of realignment on crime, incarceration, justice agencies, or offenders' recidivism.

That may be the point.

As a man who recently emerged after 25 years in prison, the lack of funding for research into realignment doesn't surprise me. After all, it wasn't as if the prison machine wanted realignment. Indeed, numerous law enforcement professionals have gone on record to declare that it would be a disaster. They wanted AB 109 to work about as badly as Seagram's wanted people to stop drinking. No, the prison machine wanted to keep things going, with 70 percent recidivism rates and massive expenditures. As Max Weber wrote, bureaucracies exist to grow, not shrink. The prison system that I knew for a quarter century went to great lengths to shield or control information about what went on inside of America's prisons. For decades, those behind the great prison machine have controlled the narrative with an eye on growth.

Information about strategies to improve our nation's response to criminal behavior has consistently been drowned out with a trumpeting of propaganda that called for tougher sentences and more prisons. Scientific data did not serve the interests of businesses or organizations that profited from the warehousing of human beings. Their businesses thrived by expanding prison spending, not in building safer communities, and those organizations certainly didn't need anything like scientific research getting in the way of arguments for more prison spending. Indeed, research has consistently shown that spending on education or vocational training in prison lowers recidivism, but administrators routinely cut those types of programs from prison budgets.

Realignment was not enacted out of some enlightened principle to help more offenders emerge from confinement as law-abiding, contributing citizens. Rather, it was the state's multi-billion dollar response to judicial orders. First, a Ninth Circuit Court of Appeals panel ordered the state to reduce its prison population to a level that would allow it to provide adequate health care to the people locked in California prisons. The Supreme Court affirmed the order with its 2011 decision in Plata v. Brown.

Since the high court ordered California to reduce its prison population, Governor Brown was forced to take action. The result was realignment. The new law did not require the state to release anyone currently in prison, but it did "shift virtually all of the responsibility for monitoring, tracking, and imprisoning lower-level felons previously bound for prison to county jails and probation." The legislation also made it nearly impossible to return parolees to prison for non-felony parole violations.

Only a specific group of offenders would be eligible for the new realignment rules. Those offenders who would be diverted from prison to county jails could not have histories of violent offenses, sex offenses, or serious offenses. The theory behind realignment held that county officials would have a better incentive to prepare those "non-serious" offenders for lives as productive citizens than state prison officials. After all, the county officials understood that those offenders would conclude their terms and return to live in their communities.

Legislators thus diverted billions from the state prison system and allocated those funds to California's 58 counties. The counties had unprecedented levels of discretion on how they would deploy the realignment funds that they received. They could spend the new funds on building new jails and increased staff salaries, or they could spend those funds in accordance with realignment's supposed objectives: to implement effective programs that would prepare more offenders for lives as law-abiding, contributing citizens.

Unfortunately, the state did not provide the resources to fund scientific data collection or evaluation projects by social scientists like Professor Petersilia and her team of brilliant students at Stanford. Consequently, "scholars worry that instead of using AB 109 as an opportunity to invest in treatment and alternatives to incarceration," the counties will instead use their AB 109 money "to increase law enforcement, electronic monitoring, and build more jail capacity." Such flawed implementation of the law could lead to more people in custody, the report ominously warns.

Their report asks "ten essential, interdependent questions" about realignment. In the days to come, I'll write articles about each.