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In short, the state and the county's criminal justice systems still have many challenges to overcome if realignment truly is to become a model for reform.
Realignment isn't the first time that Jerry Brown radically changed California's justice system. During his first term as governor 25 years ago, Brown made what he now calls a "big mistake" — he signed the Determinate Sentencing Law and ushered in an era of tough-on-crime policies in California.
The Determinate Sentencing Law affixed set prison terms to every crime. So, for example, a burglary conviction results automatically in a sentence of two, four, or six years in prison depending on the circumstances of the crime. "The idea is, do the crime, do the time," explained Barry Krisberg, director of Research and Policy at UC Berkeley's Earl Warren Institute on Law and Social Policy. "There's no role for rehabilitation in it."
After the Determinate Sentencing Law passed, the legislature took charge of assigning prison sentences for every offense. At the time, the state was in the grips of a "moral panic regarding crime," Krisberg noted. But allowing politicians to assign term limits effectively "let the punishment genie out of the bottle," he continued. Terms for virtually every offense increased, and numerous sentence enhancements were written into the penal code.
The legislature also slashed funding for prison rehabilitation. In the early 1990s, the legislature went so far as to officially change the penal code to say the purpose of imprisonment was punishment, period. These tough-on-crime policies then led to a substantial jump in the recidivism rate. In 1977, a relatively small percentage of released inmates returned to prison three years after being released. But for the past 25 years, the number has fluctuated between the 60 and 80 percent.
Under realignment, county courts aren't constrained by the rigidness of determinate sentencing when dealing with low-level offenders. Instead, they can issue three types of sentences. The first is a straight jail term, with no supervision after release. The second is a split sentence, in which a portion of the term is spent in jail and another portion is spent on probation. The last option is straight probation with no jail time. AB 109 provides financial incentives to pursue the latter two options: The corrections department gives money to counties for every transferred inmate, but won't cover the cost of a full jail term.
Still, most counties have dug into their own coffers in order to keep non-violent offenders behind bars. During the first six months of realignment, more than 70 percent of low-level criminals received maximum jail terms throughout the state, according to a report by the Chief Probation Officers of California. In Los Angeles County, Sheriff Lee Baca boasted to the Los Angeles Times that not one person has been released early from jail under realignment. "It's far more expensive to have a jail bed as opposed to a residential treatment program, but the hardest thing is to shift the culture away from 'Lock 'em up,'" San Francisco Public Defender Jeff Adachi told the daily legal trade journal California Lawyer last August.
The lock 'em up mentality also has generated an explosion in local jail construction. In the first year of realignment, 22 of the state's 23 largest counties proposed allocating huge sums of AB 109 funds to jail expansion, according to a report by Californians United for a Responsible Budget. As of October 2012, more than 7,000 jail beds had been added statewide. In San Mateo County, a proposed $160 million project could increase the jail capacity by 10,000 inmates. In Los Angeles County, Sheriff Baca proposed a $1.4 billion jail construction project, and though it was recently taken off the table after public outcry, the threat of jail expansion remains. "Realignment promised this big social justice reform," said Emily Harris, statewide coordinator for Californians United for a Responsible Budget. "But we're just adopting the same failed policies of the state system."
This all comes after three decade's of growth in local corrections spending. Since 1982, counties and municipalities across the state have increased their corrections' budgets by a total of more than 500 percent — from $3 billion to $19 billion.
But while county jails are growing throughout California, the inmate population at Alameda County's Santa Rita Jail shrank. Over the past year, the county cut jail admissions by 494 inmates — more then any other jurisdiction in California. Local courts were able to accomplish this, in part, by embracing alternatives to full-term incarceration.
Between October 2011 and August 2012, 3,952 inmates were charged under the realignment statute. According to data from the Alameda County DA's Office, roughly 70 percent served some jail time and were then released to probation, as opposed to serving full jail terms. In addition, the DA and the Public Defender's Office agreed to lessen charges on 1,215 felons so they could be prosecuted under the realignment statute and avoid state prison. This helped the county cut the number of convicts sent to state prison by 39 percent.
Still, Alameda County has plenty of room for improvement. For example, it could further reduce its jail population and save a lot of money if it implemented a pre-trial release program. Between July and September of 2011, 88 percent of Alameda County's jail inmates were in pre-trial status, meaning they were held in jail despite not having been convicted of a crime. The county's pretrial lockup rate was 12 percent higher then the state average, and 22 percent higher then the national average, according to data compiled by the American Civil Liberties Union of Northern California.
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