Prison Realignment’s Impact on Parole and Probation-Joan Petersilia-DC Public Safety Radio

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[Audio Begins]

Len Sipes: From the nation’s capital, this is DC Public Safety. I’m your host, Leonard Sipes. Back at our microphones, the respected Dr. Joan Petersilia – www.law.stanford.edu – one of the best-known and respected criminologists in the United States. I’ll read very quickly from her bio. Dr. Joan Petersilia has spent more than 25 years studying the performance of U.S. criminal justice agencies and has been instrumental in affecting sentencing and correctional reform in California and throughout the United States.  She is the author of 11 books about crime and public policy, and her research on parole reform, prisoner reintegration, and sentencing policy has fueled changes in policies throughout the nation. A criminologist with a background in empirical research and social science, Dr. Petersilia is a Faculty Co-Director for the Stanford Criminal Justice Center. The topic today is going to be the extraordinary penal experiment, correctional experiment currently happening in the state of California, commonly known to the rest of us as Realignment. Joan Petersilia, welcome to DC Public Safety.

Dr. Joan Petersilia: Thank you for having me.

Len Sipes: You know, this is the biggest penal experiment in modern history, and it’s something that most of us within the criminal justice system throughout the country are completely unaware of. This may be the biggest correctional experiment in the last quarter of a century anywhere throughout the United States and possibly anywhere throughout the world. So what I’m going to do is ask you to start off with a basic overview of what’s happened in the state of California.  Before going to that, I wanted to tell the listeners that this has every bit of importance for parole and probation and local jails as it does for mainstream corrects. So can you give me a sense, Joan, as to a basic, fundamental understanding of the California Criminal Justice Realignment Act?

Dr. Joan Petersilia: Certainly, and don’t apologize for the fact that you don’t know about it. I think what’s the most interesting thing is most Californians are just now, 18 months after it started, just kind of finding out about it. It happened very, very fast here in California. Last May, the Supreme Court ruled in favor of the plaintiffs here in California that were arguing that California’s prisons were too overcrowded to provide Constitutional health and mental health care. This was the result of two long-standing class-action lawsuits that began in 1990 here in California urging the state to reduce its prison population in order to be able to treat the mentally ill, the suicidal, and then it turned into overall medical care, getting people medications, seeing doctors, etc.  So that case was going on in the state for nearly 20 years. The plaintiffs felt the state was not reducing prison staff enough. They took it all the way to the Supreme Court, and the Supreme Court ordered California in May of 2011 to reduce its prison population. At the time it ruled, California’s prison population was 172,000, and they ruled that California had to get its prison population down to about 120,000 by this June, of June 2013.

Len Sipes: That’s a 50,000 reduction in population.

Dr. Joan Petersilia: 50,000 reductions. They decided that California had to reach 137.5% of design capacity which California had two choices: either build up capacity – we have 33 prisons here in California. One choice our Legislature could have made is if instead of reducing the prison population because it was all about you must maintain 137.5% of design capacity, which given the current prison population when they ruled meant we could only house about 120,000 prisoners.  So California faced the issue of whether or not it should expand. It had several choices: one, it could expand its out-of-state contracts with private providers; and it chose to do that for about 10,000 prisoners; or it could start a building construction program which we simply didn’t have the money to do. At the time the Supreme Court issued its ruling, California was 26 billion dollars in deficit in terms of its state budget.

Len Sipes: Yes.

Dr. Joan Petersilia: So the legislature then signed a bill very, very quickly. It in fact was signed within 24 hours of being introduced with basically no public comment.  It was signed, passed in May of 2011, and it basically is called California Public Safety Realignment. What it does, in a word, people say that “realignment,” it kind of was by design so that kind of nobody would realize what was going on because it sounds like something you might have done at the chiropractor or something. I mean, people just didn’t understand this was about prisons and about prison reduction at a massive scale. But what the word “realignment” meant was that prison after October 1st – so it was signed in May, it went into full-fledged; anybody’s sentence after October 1st was sentenced in a new penal code regime. 500 felonies, some of them quite serious actually, most drug possession, most drug sale, auto theft, forgery, identity theft, domestic violence, child abuse, things that were lesser levels of all of those crimes, in fact previously that offender would have gone to prison if sentenced for one of those 500 crimes – after October 1st of 2011, they could no longer be sentenced to prison. So if they were convicted of that crime, they had to stay in the county jail, and importantly, it didn’t change the actual length of time that they could serve in jail, it just changed the place where they had to serve the sentence.

Len Sipes: So jails now become the focal point of both people coming out of the prison system and people being sentenced.

Dr. Joan Petersilia: Right. Jails in a very huge way now, jails, kind of the workhorse and the unexamined part of the criminal justice has now become a huge focal point in California, as does probation. So the first part of realignment changed the penal code, sent about 30% of historical people who would have gone to prison, they now can’t go to prison. The second major thing they did, which is something that I think everybody across the nation had watched and I personally worked on, I worked on the drafting of this legislation, that if you are violated for a probation or parole, technical violation, you can no longer go back to California prisons. That was a huge—

Len Sipes: You can’t go back to prison.

Dr. Joan Petersilia: You cannot go back to California prisons as of October of 2011 if you are violated for a technical parole violation unless you’re a lifer prisoner. So, for 99% of people, they no longer faced prison at a technical parole violation. For them too, the maximum sentence was a jail term and in this case, the legislature basically did impose a sentence. They could not serve greater than six months in jail where they had, on average, served at least one or two years in state prison. That was a major change. The third major change that realignment did is that California, prior to realignment, was the only state that put everybody on post-parole supervision, and they put pretty much everybody on post-parole supervision for three years. Realignment changed that, and it said, “You’ll only go on state parole if your current conviction is a violent or serious crime,” which was about 40% of all people going out. “The 60% of you are going to be realigned, and you’re going to go to county probation for supervision instead”  And so if you think about the combination of these three things – new felony convictions, probation and parole violators don’t go back to prison, and many of those coming out, 60%, no longer go on parole – you see how the prison population would dramatically decline, and it did. So today, from that height of 172,000 people, we have about 123,000 people locked up today.

Len Sipes: And you’re no longer number one in the country. Texas now becomes the largest penal system in the United States, and California is number two.

Dr. Joan Petersilia: Right. And so, when you introduce the subject of the most massive experiment, California in essence has shut down or let out, when you think about 40,000 to 50,000 prisoners, and in California, that equals the size of eight prisons, has basically declined, and the parole population, because of what I just told you on the third element, the parole population has declined by 60%. And so we have now, in terms of state control over the California criminal justice population, basically we’ve reduced it by half, if you add probation and parolees, of who is in charge of criminal defendants, and there’s a lot of reasons we could talk about why that was so important for the legislator to construct it like that.  Part of it was that California’s Correctional Guard Union had in fact priced themselves out of the market. It was so expensive for the state to continue to house prisoners, under all of the litigation and the health care costs that they had agreed to over the years that the cost right prior to it, and it still is the cost of housing an inmate in California, is $54,000 a year per inmate.

Len Sipes: That’s amazing. That is amazing.

Dr. Joan Petersilia: So our litigation costs and the costs of the personnel in California had made that the legislature basically had to downsize the state system in order to save money, if nothing else. So what they decided to do is to take half of the savings – so if you had $54,000 for that prisoner and you would have spent them to house him in state prison, the state basically told the counties, “We’ll give you half of that. We’ll give you $25,000 for each prisoner that historically this county sent to prison, and we’ll give it back to you in terms of a blank check.”

Len Sipes: And that’s either to house them or provide rehabilitation programs.

Dr. Joan Petersilia: So what they did, which is also the most amazing thing that has ever happened, is they didn’t tell the counties how to spend that money. They basically said, “You need to come up with a committee,” and they said, “the committee contains the nine key criminal justice actors in your county.” We have 58 counties in California. They said, “You’ve got to have the police, you’ve got to have the sheriff on it, the public defender, the DA,” so they dictated in the legislation this group that came together, and they basically will have authority to spend the check that you’re going to get, and as I said, in the first year it was $1 billion, in the second year it’s an additional $1 billion. So we are now 18 months into this experiment and $2 billion has been given to the California local criminal justice communities to spend in whatever way they think will best serve their needs.

Len Sipes: All right. For the listeners, what I want to do is just summarize and get on to some policy issues in terms of all of this. Let me see if I can summarize and see if I’m somewhere in the ball park. You’re talking about a reduction of 172,000 offenders behind bars in the state prison systems down to 120,000; that the court ruling had to be 137% of design capacity. This was dealing with the constitutionality of the prison systems, specifically dealing with medical care. It is a prison issue, a jail issue, and a community supervision issue.  But every state in the United States – and this is why I want to broaden the discussion – every state in the United States is having some issue to some degree with the same issues that are going on in California, which is why what we’re discussing has implications for every state in the United States. Every state out there is saying that we can no longer afford the level of incarceration that we currently have, and every state out there is talking about downsizing to some degree. I do realize that prison populations have gone up in some states but not many. Generally speaking, they’ve either leveled off or decreased, so this has issues for the entire country. What are the policy implications of all this?

Dr. Joan Petersilia: Well, I think you’re absolutely right that this is not California-centric. This is, as we know, 19 states have closed prisons. I think public opinion is that the public is now forcefully voting to get kind of the lower level, particularly offenders who were involved with drugs, out of prison. We’re redesigning penal codes across this country for those kind of downsizing in the penal code. You know, we upsized and now we’re going to downsize, not only in a population but who we think deserves prison.  And so for me the question has always been, and I think this is the question that the whole nation needs to be asking as criminologists and policy-makers: “If not prison, what?” And that to me, we don’t have a good answer to, and we know we don’t like prisons. I mean, I think everybody is now pretty much of the opinion that prisons serve an incapacitation view purpose, and that for some people, we need that, and that’s enough, and we need to keep prison for violent and serious offenders for incapacitation, but we no longer believe that it serves as a rehabilitation or a particular harsh deterrent, and we no longer believe that it’s restorative and serves re-entry, so I think everybody’s got that message.  So now the question is; we’ve got the message; the prisoners are coming home; we think re-entry is important; we don’t have the money to fund re-entry well. The first step is let’s just get people out of the criminal justice system who are low-risk and got caught up in the drug war, and we should just get out of their lives and they’ll do just fine. I was also very involved in kind of, and here at Stanford Law School, we led the Prop 36 Three Strikes Reform that just passed in California, and so we also have people that were kind of caught up in the fervor of these very, very long sentences across the country, and I think states are letting those out.  So on the one hand this is a national story but it’s a story that the ending has not yet been written because if not prison – which we all believe we shouldn’t have so much of – what should we have for kind of the lower level offender, for if we don’t do something, rehabilitation, deterrents, we could take any aspect of law, retribution. What about victims and what they deserve? What is the right appropriate level of punishment to serve the other purposes that we have for the criminal justice system?

Len Sipes: In another program, we talked about the problem of over-promising and under-delivering within the terms of community corrections, and I do want to talk a little bit about that, but I want to reintroduce you. Dr. Joan Petersilia, I am so honored to have her today: www.law.stanford.edu. Joan Petersilia, the Adelbert H. Sweet Professor of Law, and she is also a Faculty Co-Director of Stanford Criminal Justice Center.  Joan, we talked on another program about the danger of this whole pendulum can easily swing back because we could have a release of individuals from the prison system if we don’t have a good plan in place in terms of dealing with them. If they go out, if they commit a series of violent crimes, if they commit a series of homicides, it becomes a political issue, and then we’re suddenly right back to where we were 10 years ago, so there’s a bit of a danger in terms of all this. You know, it may be wonderful that the experiment is going on and we’re trying different things but unless we get our act together quickly in terms of community corrections, it could blow up in our faces.

Dr. Joan Petersilia: Well, and you’re so right. We have a Republican candidate who just announced this week that he is running for governor against Governor Brown, and his key issue is to repeal Realignment and build up capacity and start building prisons, and so what goes down can certainly come back up, and we’ve got to think about what’s the pressure. Why has the nation kind of lost its luster with prisons? I mean, some of us, I think might say, “Well, prisons didn’t work. We know all the criminogenic effects of prison,” but, for other people, it’s a cost/benefit analysis, and prisons have become so expensive, that in state facing budget deficits, as they have to kind of decide whether to hire a prison guard or a teacher, it’s an easy call.  But the economy is starting to improve and so I think at least again, I’m watching this play out in California. I thought it would take a little longer. I mean, we’re 18 months into Realignment, and we have the first candidate coming out, and we have pictures in the paper. He’s holding a press conference next week. He is now going across the state saying he will appeal Realignment, and he is using those horror stories that you just said that they will use because, of course, people released will commit bad acts. So the question is how to you prepare for that. We all know it’s coming. We’ve lived long enough to know that this is the pendulum swing that we all – how do we kind of fad-proof kind of this better policy that we think makes sense?

Len Sipes: But is part of all of this our fault within the criminal justice system that we have not laid down very clear-cut guidelines for the practitioner community, backed up by very good research and giving them, you know, clear-cut instructions in terms of what works and what doesn’t work? I know the Department of Justice has done this, the Office of Justice programs. I know that others along the lines of Urban Institute certainly are moving in that direction, but practitioners often times will say to me, “Leonard, there is no clear-cut plan. Why in the name of heavens isn’t there a clear-cut plan in terms of those of us doing corrections, community corrections, telling us specifically what to do, how to do it, when to do it, who to do it with?”

Dr. Joan Petersilia: Well, and you know, we can blame the research community but it’s wrongly placed. We spend not enough much – you know, people complain that we don’t spend enough on programs. We spend even less on research, and so the National Institute of Justice budget, for example, spends about $10 million a year on outcome evaluations for all of criminal justice. That is juvenile, adult, probation, parole, in prison, communities, on and on. That is the annual budget of the National Institute of Dentistry that does evaluations of what causes a toothache, so we have our biggest social problem, a mismatch, with kind of the research that in fact would be helpful to these practitioners.

They’re absolutely right. There is no body. If you came into my office today, I couldn’t pull out off my shelf solid, good evaluations to tell a probationer or parole chief what they should be doing with different risk people, and so if you peel back the onion, if you go beyond just kind of risk responsivity and dosage and some of, you know, motivational, some of that – if you go beyond just the boiler plate of that, you know, there’s not much there, and so I think that is the frustration but it’s not that the research community wouldn’t want to be responsive. They’re facing the same problem as people who are trying to direct a good programming.

Len Sipes: So what’s happening at the ground level in California amongst the practitioner community and the 50 or so counties there in California? Are they coming together? Are they discussing this? Are they coming up with a consensus? Are they moving in a unified direction?

Dr. Joan Petersilia: Well, to even buttress the comment that I just made, California passed this law – $2 billion, as I told you, and not one dollar devoted to a statewide evaluation to look at how this is happening. Now, we were very lucky here at Stanford. I actually have four research grants from private foundations in the National Institute of Justice to look at how this is going, and really it is going to be, I think, an amazing story to tell a couple of years out. If we look at things though from the first year, I think it has been, um – disaster might be too hard a word to say but it has not gone well for the first year.

Len Sipes: Chaotic.

Dr. Joan Petersilia: I think it has been chaotic; that’s a better word, thank you. Partly as the communities were ill prepared for the influx of the serious kinds of offenders that hit probation, and I think people were scrambling to get programs in place, risk-assessment tools. They were scrambling to get vendors funded so that they could provide services. The second year is looking quite a bit more optimistic. We’re seeing community collaborations come together – probation, the sheriff, the police chief, and the department of mental health, four key people that are starting to emerge as spokesmen for their individual communities – and I think we’re getting something that I think is going to begin in some of the smaller communities but hopefully, I mean the real problem in California is of course, L.A. county. It’s a third of all offenders and they also have the most serious offenders coming home.  But I think we’re going to find some smaller and medium-sized counties that will show us how to do this but it will be a story that we need to have a little patience with, and unfortunately, we’re not doing really outcome evaluations, so what I’m doing is just process evaluations, so we’ll still be struggling to find out how this impacted the individual offender.

Len Sipes: But the sense that I get from reading the literature and reading the materials that you sent before we did this program is that you can almost compare them to falling off the life boat, and now they’re swimming and now they’re trying, all together as one to get out of the water and to help each other and to come to a consensus and work with each other because this is a very pivotal moment in not just California’s correctional history but the entire country’s correctional history. If they can all get together, all agree to some sense of standards and practices, and learn from each other and prosper; this may be something that will have an extraordinarily significant impact for the rest of us throughout the country. They seem to be coming together; am I right or wrong?

Dr. Joan Petersilia: Well, I very much think so, and we have a really dedicated; I mean, even though we’re all kind of, none of us have money, everybody, I mean, I’m amazed at how the research community has come together in California to try to help these counties. I just published an article that came out a couple of weeks ago that I would urge anybody who wants to know kind of how things are going. It’s called “Looking Past the Hype: Ten Questions Everybody Should be Asking about California’s Realignment,” and it’s kind of a progress report It basically says that Realignment – of course if you’re not following this closely, all you’re looking at is the Supreme Court and whether or not we’re going to meet that Supreme Court mandate with prison reductions, but that to me is not where we should be focused solely.  We need to focus on what this is doing to communities, what it’s doing to crime rate, what it’s doing to the culture of probation. I find that a fascinating question. You know, one of the things that’s happening is some probation officers are starting to be armed. We’re training officers to deal with a much more violent offender because now, of course, much of their caseload has been to prison. What does that do to a culture of rehabilitation which probation was the only agency that had that as their mission? What does it do to offenders? Are they getting involved in more treatment? Are they being discharged? What is it doing to jails? We now have jails that are no longer serving short-termers. We now have an offender who’s serving a 45-year sentence in a county jail.

Len Sipes: That’s amazing, and the county jails weren’t built for that.

Dr. Joan Petersilia: And what does it do to litigation? Will the litigation problems of the state now fall to the county jails? In fact, four of our counties are now facing lawsuits under the exact same condition, which led to Realignment.

Len Sipes: The medical issues, yes.

Dr. Joan Petersilia: The whole medical issues, and you know, how much is this going to cost us? So these are the issues that I think drive crime policy nationally, and I think, well certainly California will serve as a test case.

Len Sipes: Only a couple minutes left. On another program you mentioned that sheriffs are now taking the lead in terms of community corrections, so now you have spokespeople before community corrections for the first time in California, locally elected officials who are now getting up and standing up for community corrections. That’s a C-change.

Dr. Joan Petersilia: It is a C-change, and it was a surprise to me because I think the credibility that the sheriff, the county sheriff has, which is an elected position, and they are seen as the chief spokesmen for public safety. When they get behind probation programs, it’s a whole different message to the public, and I’m seeing them be able to garner attention. I’m seeing them be able to – they’re starting to run some of their own programs. They’re starting to be much more engaged in treatment, and what they tell me, we’ve now interviewed over 100 leaders in California who are responsible for implementing Realignment, and what sheriffs constantly tell us, “These were our people. We always knew they were coming home. We basically know how to handle them best, and this is our responsibility. Give us the money. The state never could do it well,” and I think that is what we’re going to see whether or not they can. Can a local community do it better?

Len Sipes: Instead of just throwing it off on the state and saying it’s their responsibility, they’re now saying they’re our offenders; they’re our responsibility, and that would be a huge difference.

Dr. Joan Petersilia: Right, right.

Len Sipes: Where do we go to from here? We only have about a minute left in the program. What should we be looking for over the course of the next year in terms of an evaluation and a policy assessment?

Dr. Joan Petersilia: Well, I think you’re going to start seeing reports starting to come out. I know our first report we will start publishing at the end of this summer on how things are going. We are actually starting at Stanford. The first meeting is in a couple of weeks, an executive session on Realignment where the 20 key actors in California will participate in a two-year process at Stanford Law School, similar to the Harvard Executive Sessions on Policing. We want a place where we’re going to try to create a body that will speak for how Realignment should continue in the future, guided by research and best practice, but also taking into account the practitioner voice. And so I think California’s going to be an incredibly exciting place over the next couple of years for correctional issues.

Len Sipes: And Joan, I’m going to leave that as your final word. Ladies and gentlemen, Joan Petersilia, and she is with Stanford as a Co-Director for the Stanford Criminal Justice Center. www.law.stanford.edu. Heavens, I really appreciate the conversations that we’ve had, clarifying this extraordinarily important piece of research and issues. I’ll put the document that Joan mentioned within the show notes.

Ladies and gentlemen, this is DC Public Safety. We appreciate your comments, we appreciate even your criticisms, and we want you to have yourselves a very pleasant day.

[Audio Ends]

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