California's prison realignment plan needs adjustments, Stanford law professor says

California's shift of thousands of criminals from state prisons into county jails was intended to ease overcrowding, reduce costs and improve rehabilitation while ensuring public safety. But new research from Stanford Law Professor Joan Petersilia shows how realignment's record so far is mixed. She suggests ways to improve it.

L.A. Cicero Stanford Law Professor Joan Petersilia

Law Professor Joan Petersilia is co-director of the Stanford Criminal Justice Center.

When California embarked on a sweeping prison realignment plan in 2011, The Economist described it as one of the "great experiments in American incarceration policy."

The challenge was to shift inmates from overcrowded state prisons to jails in California's 58 counties.

At this point, the results are mixed and the "devil will be in the details" as tweaks to the original legislation are urged, according to new research by a Stanford law professor.

"Only time will tell whether California's realignment experiment will fundamentally serve as a springboard to change the nation's overreliance on prisons," wrote Stanford Law School Professor Joan Petersilia, a leading expert on prison realignment, in her article in the Harvard Law and Policy Review. "It is an experiment the whole nation is watching."

In 2011, California Gov. Jerry Brown signed legislation to change how the state government deals with low-level felonies, with the goal of reduced recidivism. Now these felons can be housed in county jails, as opposed to state prisons. The new policy was a result of a U.S. Supreme Court decision to decrease – for overcrowding and health reasons – the population of California's prisons from approximately 156,000 inmates to 110,000 inmates.

Counties administer the programs, but the state still pays for them, though indirect costs exist at the local level, as Petersilia points out.

"If it works, California … will have shown that it can downsize prisons safely by transferring lower-level offenders from state prisons to county systems. … If it does not work, counties will have simply been overwhelmed with inmates, unable to fund and/or operate the programs those felons needed, resulting in rising crime, continued criminality and jail overcrowding," wrote Petersilia, co-director of the Stanford Criminal Justice Center.

In an interview, she noted that the 2008 economic crisis prompted state and local governments to cut costs and find efficiencies in their prison and jail systems. Plus, people are now thinking differently about punishment.

"The public no longer believes that prisons are the answer for lower-level offenses [drug crimes, minor thefts], and also is more aware of the hugely damaging effects [inability to get a job] of imposing prison terms on those who really aren't dangerous," said Petersilia, who also has forthcoming research on prison policy.

Counties respond 'heroically'

Petersilia's research for the Harvard Law and Policy Review article consisted of interviews with 125 people in law enforcement, courts, probation departments, victim service agencies and offenders themselves. These sessions were conducted in the second year of the realignment. Subjects were asked how realignment was working and what fixes were needed.

"The findings illustrate that realignment gets mixed results so far," wrote Petersilia, who described counties as struggling heroically to carry out an initiative seemingly imposed on them overnight.

Probation officials were the most optimistic about realignment, the interviews revealed. They believed that mental health agencies and the courts could reduce recidivism, but that it will take time to coordinate and implement rehabilitation programs that do not compromise public safety.

Though most participants agreed that realignment is spurring greater collaboration and innovation on how to efficiently incarcerate criminals, problems exist, according to the research. For example, counties are now dealing with more sophisticated criminals, lack of space and concern that the state's problem of overcrowding could become local problems as well.

Finally, some prosecutors were disappointed in the "deep jail discounts" – reduced time behind bars – given to arrestees due to the crowded jails, she said.

The California Constitution requires the state to notify victims and give them a chance to be heard at most proceedings involving an inmate's release. But Petersilia said inmates may be released at the local or county level without any statewide mechanism for notifying victims of those decisions.

"Realignment is principally focused on prison downsizing due to a Supreme Court order to reduce prison populations. Victims were not an integral part of the legislation, and in many ways got left out of the prison downsizing discussions," said Petersilia, who has also researched the specific issue of victims' rights in a post-realignment California.

New measures urged

Petersilia urges legislative revisions to California's realignment plan (some are now under discussion in the legislature). Suggestions include:

  • Requiring that all felony sentences served in county jail be split between time behind bars and time under supervised release (probation), unless a judge deems otherwise
  • Allowing an offender's entire criminal background to be reviewed when deciding whether the county or state should supervise them
  • Capping county jail sentences at a maximum of three years
  • Allowing for certain violations, such as those involving domestic restraining orders or sex offenses, to be punished with state prison sentences
  • Creating a statewide tracking system for all offenders
  • Collecting data at the county and local level on what is and is not working in realignment

"These recommendations should reduce the burden realignment has placed on counties," wrote Petersilia.

She said several counties are taking advantage of split sentencing with promising results. Still, only 5 percent of felons in Los Angeles County have their sentences split. She called this type of flexibility "extraordinarily important" to realignment, as it would lessen space and cost burdens for counties.

"Most county officials believe realignment can work – if the state will work with them to tweak the flaws in the original legislation," she wrote.

Overcoming history

Petersilia said that prison reform in the United States in the last 100 years has gone through pendulum swings about every 10 to 20 years.

"We build up the prison population [through tough-on-crime measures] and then decide it isn't working and we are spending too much, so we then start downsizing and emphasizing community alternatives and rehabilitation," she said.

But then crime starts increasing and the public thinks the courts are being too soft on criminals, and the pendulum swings the other direction, she said. It is a costly societal problem, especially in California, which spends about twice the national average to accommodate a parolee in the community, according to Petersilia.

"These are individuals with drug and alcohol addiction, mental illness, and few literacy and employment skills. The money isn't enough, but it isn't only about money. We don't have good programs and good implementation of programs," she said, asserting a lack of community and political will on the prison issue.

"The pendulum keeps swinging," Petersilia said.

Joan Petersilia, Stanford Law School: (650) 723-4740,

Clifton B. Parker, Stanford News Service: (650) 725-0224,