Two years ago the U.S. Supreme Court certified California's prisons as unconstitutional overcrowded, unsafe and prone to cause, not cure, recidivism. Responding to the earlier federal injunction ordering California to reduce its prison population, the Legislature passed Assembly Bill 109, the so-called Public Safety Realignment law that transferred authority for large numbers of convicted felons from the state prison and parole system to the state's 58 counties.
Since realignment went into effect 18 months ago, the state prison population has declined by roughly 25,000. Quite predictably, the local jail population has simultaneously increased, and by some projections, the jail increase might soon roughly equal the prison population decline.
If the total number locked up in state prisons or jails turns out to be about the same in the near term, should we conclude that realignment isn't succeeding? We think the answer is no, because that's the wrong metric for evaluation.
First, even if accurate, the projection that the overall incarceration population in California may not change doesn't diminish realignment's success. The law's primary and most immediate goal was to satisfy the federal injunction to cure unconstitutional overcrowding.
Of course, the Plata case is not yet resolved; the plaintiffs contend many illegal conditions persist. But given the dramatic decrease in the number of state prisoners, and the overhaul of health care and mental health care, and other operations, we know that in time the injunction will terminate.
When it does, realignment will deserve much of the credit. Moreover, many felons who would have entered state prison on new crimes or re-entered following parole revocations, but instead have been "realigned" under the new law surely pose some risk to public safety. Realignment wasn't intended to change the length of sentences, only the place where sentences are served. If prosecutorial and judicial decisions lead to most of those realigned felons being in jail, then realignment will have solved a constitutional problem without reducing public safety.
Finally, the Eighth Amendment violations in Plata were hardly legal technicalities. Overcrowding caused shocking numbers of preventable deaths from disease and even suicide, serious spread of contagious disease, and a lack of even minimal mental health care. It also exposed inmates and guards to violence, and deprived educational and rehabilitation programs of minimal space to operate.
If realignment helps address those problems, it will help achieve an undeniable social good while also potentially reducing recidivism for both jail and prison inmates. Indeed, because the sheer legal costs of defending the federal case have been enormous, resolution may allow state resources to be redirected toward reducing recidivism in a number of ways.
Second, those who hoped realignment would reduce overall incarceration can find reason for optimism if they exercise realistic patience. AB 109 might ultimately reduce the overall number if the shift to county control induces agencies to more effectively reduce recidivism.
Indeed, another premise of realignment was that counties are better positioned to rehabilitate inmates in jails and released offenders on supervision by bringing them closer to social service and mental health providers. Even if the zero-sum projection is accurate for another year or two, realignment still shows promise of success by this theory just not immediately.
As our research shows, counties are now undeniably absorbing increased numbers of offenders. Some face jail overcrowding themselves, a few report increases in low-level property crimes, and new and enhanced responsibilities are being placed on judges, sheriffs, prosecutors, probation officers and police.
But a key virtue of realignment rests on classic economics: It requires counties to internalize the costs of conviction and sentencing decisions made at the county level costs previously externalized on state prisons and parole agents.
The hope is that, after a reasonable transition time, counties will be able to stabilize and reduce their jail populations without sending prisoners back to the state and without compromising public safety. Doing so will require the use of risk assessments by county officials, better coordination of decision-making and information-sharing among agencies, and more innovative and cost-effective use of alternatives to incarceration.
It would have been ideal if realignment could have met these aspirations quickly. But it would have been unrealistic to expect it, given the deep fiscal and legal crisis California's criminal justice was in two years ago. Yes, realism demands concern about some troubling aspects of the transition: Along with the increases in jail and probation populations, many counties are dealing with more criminally sophisticated offenders than they were pre-realignment. And the health care problems that led to Plata could morph into county-level versions of the state problem.
But reports tell us that many counties are managing jail reductions through risk assessments and are innovating with alternative sentences and cross-agency re-entry resource centers. The reports justify cautious optimism that with appropriate fixes realignment just might work. At the very least, projections that the overall incarceration rate hasn't dipped do not demonstrate that realignment isn't working.
Joan Petersilia and Robert Weisberg are law professors at Stanford Law School and co-directors of the Stanford Criminal Justice Center.