There is a worse legislature than the California Legislature. At least California legislators stay on task working on the many intractable problems, but America’s federal court system are wannabe legislators of the worst kind. The newest court order is basically intent language with no substance other than an order. In the recent Supreme Court decision ordering the release of tens of thousands prisoners the Court has legislated the standards for state prisons and has taken the executive authority on how to do it. Except they could not even do that. Once the slender majority determined that it is cruel to be overcrowded they could not find a path on how to get there. So they have simply ordered California to do release prisoners and if California does it wrong the courts will come back in with a heavy hand.

Now that the court has ruled they are off on other battlefields where they can shoot the wounded and rob the dead. Under their interpretation of the Eight Amendment against cruel and unusual punishment many low rent dwellings, hospitals, and even military installations would fail. Nearly every family in American history can tell a story of overcrowded conditions, inadequate health care, or both. Throughout our history Americans have worked to eliminate those situations but never by court order. It takes hard work.

California should have built more prisons or found ways to house inmates less expensively. California should have located the new prisons in cities near hospitals and a medical labor force. One of the original complaints in the 1991 lawsuit was due to the fact that a psychiatrist could not be recruited to live near Pelican Bay prison in rural Del Norte County. If that prison had been built in the bay area as it should have been I doubt if health care would be such a large part of the lawsuit. If California had continued to expand prison beds then overcrowding would not have been part of the lawsuit.

And like a legislature attacking last year’s problem the Supreme Court’s order comes at a time 5 years after California’s prison population peaked. California is doing something about overcrowding and if money is any sign of quality then California is doing unbelievable things with prison health care under the court’s prison health czar.

Governor Brown, Secretary Cate and the real California legislators have been dumped on by this court. They now must release some 33,000 plus from high security adult men’s facilities. In 2009 according the CDCR Annual Report there was an in-prison population of 168,830. But 5% of this number are female inmates not under the order, and another group not under the order are those in the fire fighting conservation camps. So that roughly leaves 158,000 subject to the order. Another 41,000 are Second and Third Strike commitments under the Three Strikes initiative and I would assume given their criminal history of violent and property crimes would not be considered for release. This leaves 33,000 to be released out of a pool of 117,000.

However, this is a snapshot and not even close to the whole story. Making a decision on who to release who is most likely to not re-offend is very tough. Even tougher is that our prison system is already something of a revolving door. In 2009 about 161,000 persons came into the state’s hands and during the same year roughly 159,000 persons left the prison system. I do not believe the court will give us credit for people released who were already scheduled to be released but do we really want to release people literally before they are sent to state prison for a felony conviction or a parole violation?

By my numbers we will be releasing those Level 1s and 2s recently arrived pretty quickly after they are classified. We will also be discouraging parole agents and local police from revoking parole on violators forcing them to new trials if the crime is serious enough to warrant it when the state may be releasing them soon anyway. These two levels comprise about a third of the population which is roughly the number the court wants released.

The classification system is based upon factors important behind bars. Things like propensity to violence, escape risk, and continued criminal activity are considered. What is not considered is the crime that was the basis of the original conviction. A number of people commit a major crime but would never do it again while others are convicted of relativity minor crimes with a lifetime background of violent behavior. It is very likely that a release program that focuses on the lower classifications will release a large number of people convicted of major felonies.

I am reminded of the great anecdote reported by Chuck Colson in his work at Prison Fellowship that the prisoners would make odds on offenders released from prison on how soon they would return if ever. Colson said that the fellow inmates who knew the man did a better job than the parole board on who was ready for release. Given the extraordinary large number of early releases about to take place maybe we should let the inmates vote. I certainly think the parole board will not do any better.

What would really be fun to watch is if Justice Kennedy and the other 4 would really move from judge to executive and name the 33,000 who should leave prison.

I cannot find any data on excess jail capacities at the counties. This is Governor Brown’s solution accompanied of course by his tax increase which is also his solution to every problem of state government. Wow, this must be some tax increase if it can pay all debt and house all criminals. While there is jail construction underway I doubt whether there are 30,000 empty beds out there. Even if there is a tax increase and a transfer to jails there will be thousands of felons released soon.

Perhaps the most devastating consequence of this order is that if and when the order is fulfilled no new prison admission will be allowed unless another is released. No felony conviction will result in a prison sentence unless the department can show to the court that another has been released. Given the size of California the idea by the courts that our prison system can be reduced by tens of thousands is not reasonable. During all of this legal hassling I am surprised that Governor Brown is not proposing actually building more state prisons.

California’s commitment rate is 116 persons for every 100,000 people. Ask any cop if there are 116 criminals in a town of 100,000 and you will probably be laughed at. Despite all the hype our prison commitments are actually relatively low. It is already true that we only send the most serious criminals to state prison now with this court order we will no longer be able to do so. I pray that those in authority who will determine who is to be released very early will select those who are the least danger to the community.

Tags: prisons

This entry was posted on Tuesday, May 24th, 2011 at 7:05 am and is filed under Blog Posts.