1.7: Prison Overcrowding
In the 1980’s, the crime rate in America exploded. While many factors affected the rise, most scholars indicated that the rise was due to drug trafficking and gang activity. Drug traffickers and gangs protected their “turf” by killing the competition. Media would report nightly on the impact it was having in neighborhoods and society demanded action. Legislation responded by creating harsher sentencing laws. Mandatory minimum sentences and three strikes laws greatly changed the way we managed prisons. It led to longer sentences and prison overcrowding. To compound prison overcrowding, many of the offenders who are released are only returned to custody for parole violations. This is called recidivism. According to the California Department of Correction and Rehabilitation, in the early 2000’s the recidivism rate was approximately 65%, reaching its highest point in 2005-2006 where it was 67.5%. By the 2000’s the prison population had reached epidemic proportion.
Figure 1.4 Overcrowding in California State Prison. Public Domain.
Prison overcrowding reached epidemic proportions in California. The inmates filed lawsuits stating their Eighth Amendment rights were being violated. This led to action by the U.S. Supreme Court requiring the state to take immediate action to reduce its population.
California's prisons are currently designed to house approximately 85,000 inmates. At the time of the U.S. Supreme Court's 2011 decision in Brown v. Plata , the California prison system housed nearly twice that many (approximately 156,000 inmates). The Supreme Court held that California's prison system violated inmates' Eighth Amendment rights. The Court upheld a three-judge panel's order to decrease the population of California's prisons by an estimated 46,000 inmates.
- Department of Psychiatry and Behavioral Sciences, University of California-Davis School of Medicine, 2230 Stockton Boulevard, 2nd Floor, Sacramento, CA 95818, USA. wjnewmanmd@gmail.com
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But this is not unique to California, across the United States our prison populations are among the highest in the world. According to a report prepared by American Psychological Association, “One out of every 100 American adults is incarcerated, a per capita rate five to 10 times higher than that in Western Europe or other democracies, the report found.” While there is no easy answer, it is safe to say that we must evaluate the current system and find progressive ways to deal with crime and the criminal offender.
Mandatory Minimum Sentences
In the mid 1980’s, legislators created mandatory minimum sentences for many drug crimes. The Anti-Drug Act created in 1986 dramatically increased the sentences ordered for certain drug charges. The sentences increased depending on the drug and the amount. Many of these sentences started at 10 years in prison up to Life. But this legislation took away the power and discretion of judges. Now the district attorney had significantly more power, based on the charges filed offenders could be facing significant prison time. They would likely plead to a lesser charge than facing a trial where they would be sentenced to prison for decade to Life.
These mandatory minimums which started at the Federal level were soon adopted by the state. But many of these mandatory minimum sentences were applied to low level drug offenders, not the “high-level” suppliers or importers Congress intended the laws to address. Most of these lengthy sentences were handed out to drug couriers, street level dealers or even friends or families of drug offenders.
But reforms are in the works. Recognizing these laws did not have the intended outcomes, judges and citizens have been advocating for repealing these laws and return sentencing power to judges. Several states have already repealed the laws, but more need to follow.
Three-Strikes Law
Three-Strikes legislation, often referred to as habitual offender laws impose harsher sentences for certain crimes (often violent offenses) for repeated violations. For example, in California after the first offense, the second and third crime could result in double the sentence, up to life in prison.
Three Strikes law was to require a defendant convicted of any new felony, having suffered one prior conviction of a serious felony as defined in section 1192.7(c), a violent felony as defined in section 667.5(c), or a qualified juvenile adjudication or out-of-state conviction (a "strike"), to be sentenced to state prison for twice the term otherwise provided for the crime. If the defendant was convicted of any felony with two or more prior strikes, the law mandated a state prison term of at least 25 years to life.
This law was designed to incapacitate offenders (through long sentences) and deter others from committing crimes due to the consequences they will face. But again, this mandatory sentencing took the power away from judges to determine the appropriate sentence based on the crime, offender, victim and circumstances. This law, like mandatory minimum drug sentencing has dramatically increased the American prison population. The intent of this law was to reduce serious, repeat offenders and permanently incapacitate offenders who do not “learn their lesson.” However, critics argue that the law has been used to incorrectly and incarcerate offenders unnecessarily
Figure 1.4 3 Strikes Law is under a CC BY 4.0 license.
Recidivism
Another dynamic issue facing prison overcrowding is recidivism. Recidivism is when offenders are returned to custody for a probation/parole violation or after committing a new offense. Often times offenders are returned to custody not for a new law violation, but what is called a technical violation of community supervision. This is when an offender violates a court order or probation/parole officer’s directive. Usually officials work with offenders before returning them to custody using informal sanctions. But if the offender continues to disregard directives or commits a serious violation of a term; for example, a domestic violence offender harassing the victim; they can be returned to incarceration. When community supervision is revoked, a hearing is held before a judge. Depending on the violation, they could be returned to custody for a short time, or to complete the remainder of their commitment. This hearing is often called a revocation hearing.
Recent changes in California has been implemented to address recidivism and prison population. Enacted in 2011, AB 109 Public Safety Realignment was implemented to address recidivism and prison overcrowding. While there are many facets of this legislation, the biggest change was transferring a significant amount of criminal supervision to local probation departments and out of prison/parole supervision. For a select number of “non-violent” offenses, offenders who used to go to prison would now remain in local custody and released to county probation supervision instead of going to prison. The state redirected funds to county law enforcement agencies to fund evidence-based programs to reduce recidivism. (Evidence-Base Practices will be discussed in the next section.
This realignment had a significant impact on local law enforcement agencies, especially local jails and probation departments. A significant number of offenders would remain the counties responsibility. Jails had to deal with an increased population they were not built to deal with and also longer incarceration rates. Historically, California jails only housed offender sentenced to one year or less. After AB 109, sentences could go as has as decades. Jails were not designed to house offenders’ long term, so this has been a struggle for many local jails. They also didn’t have rehabilitative programs in place for long term offenders. The state has provided jails with funding to establish evidence-based treatment programs in their facilities.
Probation departments were also significantly impacted by the realignment. They now had different classifications of offenders with specific terms of supervision. Historically, probation departments supervised offenders in the community in lieu of a lengthy prison sentence. As long as they complied with the terms and conditions outlined in their sentence, they could remain in the community. If they complied for the term of supervision (usually 3-5 years) they would be successfully completed and could even have their conviction reduce in certain circumstances. However, if they failed to comply; probation could be revoked, and they were then sentenced to prison to serve their commitment. This is called Felony Probation. After realignment, there were two additional probation supervision types: Mandatory Supervision and Post-Release Community Supervision.
Mandatory Supervision was a sentence ordered by the court for felony crimes determined to be “non-violent” and not requiring prison time. These offenders would serve time in local custody and released to probation supervision when jail determined they completed their commitment. (Of course, jail population and overcrowding lead to early releases). The judge orders the in-custody and supervision time at sentencing. For example, for the crime where the confinement time is six years. The judge can order one, two or more years in custody with the remainder of under mandatory supervision. If the judge orders one year in jail, they would spend the remaining five years under Mandatory Supervision. Post-Release Community Supervision is a grant of supervision that occurs after the offender completes this prison commitment but has been determined to be a “non-violent” offender and place under the supervision of a probation officer instead of a parole agent. The term of supervision is one year and if they remain violation free during that one-year period, they are terminated from supervision.
Again, this greatly increased the number of offenders under probation supervision. The state funded the local county probation department for staffing. The state also funded local probation departments for evidence-based treatment programs to address these new offenders.