Yesterday, Mike Rushford wrote a post detailing the dismal experiences California has had implementing its version of dumbed-down sentencing and early release called "realignment." Realignment was signed by Gov. Brown roughly five years ago, in April 2011, in response to years of problems with prison overcrowding.
As Mike noted, the results have ranged from disappointing to dreadful. One promise of realignment has been kept, true: The state has about 30,000 fewer prison inmates. But the main promise to the electorate -- cost savings -- has been shredded. As Mike pointed out, the state is spending two billion more per year now on incarceration than when the reforms were adopted. That would be T-W-O B-I-L-L-I-O-N.
The other main promise was that Californians would be just as safe. Crime wouldn't increase; if anything, it would decrease, as the state adopted a more humane attitude and spent more on social services (which it has certainly done to the point of non-trivial bankruptcy concerns).
What has become of that critical promise?
Mike gave the answer in gory detail:
[F]ar worse than the false promise of saving tax dollars was the lie about protecting public safety. According to FBI Preliminary Uniform Crime Report, which counts crimes in cities with populations of 100,000 or more for the first six months of 2015, violent crime increased by 1.7% nationally while property crime actually declined by 4.2%. But in California violent crime spiked by 12.9% and property crime increased by 9.2% in the state's largest cities. In most cities violent crimes like robbery and aggravated assault were up, sometimes way up. There were 600 more robberies and 1,300 more aggravated assaults in Los Angeles. There were nearly 400 more robberies in San Francisco, and murders increased 71%. 73% of California's largest cities had increases in violent crime, 71% had increases in property crime, and 89% saw increases in stolen vehicles. Let us not forget that, just as proposed in the federal reform, California only reduced sentences for so-called non-serious, non-violent offenders.
Ooooops.
Today, Prof. Doug Berman, a leading advocate of sentencing reform, gives his answer, here. His central point is that California has had rough sledding because it failed to tackle the problem proactively. In particular, California did not create a Sentencing Commission to plan the transition to a "reformed" system. Thus, in Doug's view, it cannot be a surprise that California has fumbled and stumbled.
Doug's key passage (in my view) is here:
The critical part of the California reform story left out from the C&C discussion is that the California legislature from 2005 to 2010 completely failed to respond in any sound way to sensible calls by sentencing reformers to deal with the state's unconstitutional prison overcrowding and the statutory sentencing problems aggravating these problems. The court orders requiring prisoner release in Plata and the voter-approved sentencing reforms passed in subsequent elections were the direct result of federal courts and Californian voters no longer being able to trust the state's elected representatives to move responsibly forward with needed state statutory sentencing reform....[A]fter years of failing to heed calls by sentencing reformers (and the bipartisan US Sentencing Commission) to get ahead of statutory sentencing problems, much of Congress (now led by the GOP) has seemingly come to realize that failing to deal proactively and systematically with sentencing and corrections reform could produce even more long-term problems and challenges. But, yet again, the tough-on-crime crowd at C&C and elsewhere is vehemently opposed to a legislature moving forward proactively and systematically with enduring statutory sentencing problems before we get to a crisis point and other actors feel compelled to get involved due to legislative inaction.
In other words, California's disaster with liberal sentencing policies is the fault of conservatives.
Ain't it always. Just as criminals are never responsible for the harms they cause, liberals are never responsible for the failures they enact.
There are some specific points to note about Doug's analysis. First is what he does not dispute -- that California's sentencing reforms have not produced as advertised. The key promises of low crime and less cost have been breached.
Where is the accountability from the people who brought this to us?
Second, Doug's criticism never even leaves the launching pad because its premises are blinkered. The progressive California leaders who made so many promises about the benefits of sentencing reform are the same ones who failed to create the heralded Sentencing Commission. Is Doug thinking that a mass of troglodyte Republicans snuck in there unnoticed and sabotaged a Sentencing Commission, but then inexplicably lost the power to sabotage other reforms they opposed even more ardently?
Third and more broadly, when did C&C and the "tough-on-crime crowd" get to control California political outcomes? The Governor, Lt. Governor and Attorney General are all liberal Democrats. The state legislature has been Democratic property for years; at the moment, the Senate is controlled by Democrats 26-14, and the House by 52-28. This is a C&C cabal?
Fourth, where is the evidence that a California Sentencing Commission would have produced better results than we have now? The assumption that it would have is, so far as I can see, nothing but speculation. And not all that plausible, either, since the people who would have designed the Sentencing Commission are the same ones who designed the failing criminal justice policies California has today. As I've said before, the problem here is not management. It's concept. With sky-high recidivism rates, early release is going to mean more crime faster. There is no clever social science, and no social science word-blizzard, around this fact.
Fifth, putting all that to one side, and assuming Doug is right about the planning a Sentencing Commission supposedly would have undertaken, why didn't the backers of California's reform measures say anything about it at the time? Why, that is, did they push these reforms without loudly warning, "Hey, wait, people! We have to hold up here. We need to plan this out before we take the plunge."
But they said nothing of the kind. Instead, in order to be able to push this ahead politically, they rushed forward with promises they couldn't keep and haven't kept.
Sixth, and again assuming the gravamen of Doug's criticism, haven't the last five years been enough to straighten this out? Really? But it's worse: Not only are the harms of California's 2011 sentencing reforms not being straightened out, they're getting worse. The crime statistics for 2015 (to the extent they're in) are worse than the ones for the year before.
Still, look, really, it was all conservatives' fault!
P.S. Conservatives actually did give advice to California about how to avert the realignment crisis: Build more prisons. This is exactly the advice ignored -- ignored and condemned -- by the liberals whose bad ideas and deceitful promises now have California on the path to spiraling costs and more crime.
Just a note on California's approach to sentencing and prisons. In 2007, the Democrat-controlled Legislature responded to the demands of two of the most pro-defendant federal judges in the U.S. who were presiding over inmate lawsuits claiming the state prison health care system violated the Eighth Amendment. That response was AB900, which Governor Schwarzenegger signed, to authorize spending $7.3 billion to build an additional 40,000 state prison beds and 13,000 county jail beds. The next year, Jerry Brown was elected Governor with a Democrat Attorney General and a near super-majority legislature serving with him. Had they chosen to allow the spending approved by AB900 the judges' edict would arguably have been satisfied. Four years after that bill passed, only an inmate hospital in Stockton had been built.
The bonds to provide for the other billions to add prison beds were never authorized, and finally the three-judge panel issued its order. A week before that order was upheld 5-4 by the Supreme Court (Plata) Jerry Brown signed AB109 (Realignment) a 425 page bill passed by the Legislature on a party-line vote with no committee hearings.
A Commission of unelected political appointees most likely would have recommended the provisions of Realignment and thereby taken the political heat off of the Governor and the Legislature when crime increased. But I wonder why anyone would consider that a good thing?
1. Bill, as is too often the case for political partisans like you, you seem way too eager to convert this discussion into a pitched battle between so called "liberals" and "conservatives." The point of my post was to highlight the need for responsible elected leaders of all political stripes to identify and respond wisely to developing practical problems in criminal justice systems with proactive, data-informed, measured legal reforms, and to assert that enduring problems in California (not only with prisons, but also the death penalty and tax rates and lots of other west-coast government dysfunction) results from the failings of elected leaders of all political stripes in California. I am happy --- indeed, eager --- to blame both so called "liberals" and/or "conservatives" in the deep blue state of California for these problem, and we can and should start with Democrats (liberals?) like Gray Davis and Jerry Brown who both have seemed more eager to just try to ignore prison problems that did Republican (conservative?) Governor Schwarzenegger.
2. The evidence has been very clear from the states that those (both red and blue) with functioning sentencing commissions have, generally speaking, done a much better job identifying and responding wisely to developing practical problems in criminal justice systems by advocating for proactive, data-informed, measured legal reforms. Do you dispute that, generally speaking, state sentencing commissions have generally helped address sentencing/correction problems, at the very least by being a useful less-partisan and more expert collector of criminal justice data? As a huge state with lots of different regions and varied crime/punishment problems, California seems to me to need a sentencing commission just to be able to get a better handle on all that goes on in the state. Again, I am happy/eager to blame so-called liberals even more than conservatives for CA never having a sentencing commission, my point is only that identified problems with criminal justice reforms in CA should include discussions of the enduring failure to create the kind of sentencing commission that has helped other states do better.
3. Wasn't crime reported at record lows in 2014 in California? I am not at all asserting or even suggesting that such data shows sentencing reform has "worked," but I do want to make sure I am on record disputing the assertion that 2015 or 2016 developments alone are sufficient to "prove" sentencing reform has failed in CA. Even more to the point of my post, how sentencing reform transpired in CA --- reactively in response to a court ruling and through voter initiative, rather than proactively through needed legislation --- surely accounts for some (if not most) of any problems that can be identified (especially cost problems).
4. If California had a sentencing commission, there would be a body that could be committed to trying to straighten out problems more proactively and often likely more effectively. Look how the USSC has tracked the impact of the FSA, predicted the impact of the proposed SRCA, and now is responding to the SCOTUS Johnson ruling. I will be quick to assert that the work of the USSC is far from perfect, but it greatly enhances all of our understand of what is going on and how to assess what reforms are still needed.
5. I am really trying to make a simple point, namely that because California has generally done sentencing reform "ass-backwards" and only after problems reached a crisis point, it would not be surprising if these reforms have not lived up to advocates' promises (and, importantly, I think it is valuable and important for Michael and you to keep highlighting that promises have not been fulfilled).