three strikes – Public Policy Institute of California

Sentence Enhancements: Next Target of Corrections Reform?

Senate Bill 180, which has passed through the legislature and is currently on the governor’s desk, aims to change a sentence enhancement related to dealing drugs. The bill would repeal the three-year enhancement for a prior conviction related to drug sales, except in cases where a minor is used in the crime. The repeal would affect just 2.3% of the people who entered prison between October 2015 and September 2016. In light of the state’s efforts to downsize its prison and jail populations, however, the bill’s passage could create momentum for similar reforms.

California’s best-known sentence enhancement mechanism is the Three Strikes Law, passed in 1994. The law doubles the sentence of any offender convicted of a second serious or violent crime. A third conviction results in a sentence of between 25 years to life. There are roughly 38,000 second and third “strikers” in California prisons, a little more than one-third of the prison population.

Overall, California has more than 100 separate code sections that enhance sentences based on the current offense or the offender’s record. For example, using a firearm while committing a violent and/or sexual felony adds anywhere from 10 to 25 years. A gang-related felony results in 2 to 10 additional years, depending upon the seriousness of the offense.

As of September 2016, 79.9% of prisoners in institutions operated by the California Department of Corrections and Rehabilitation (CDCR) had some kind of sentence enhancement; 25.5% had three or more. Aside from second and third strikes, the most common enhancement adds one year for each previous prison or jail term.

Research on sentence lengths offers little support for the idea that the threat of longer sentences deters people from committing crimes. Physically removing a person from society does prevent him or her from engaging in criminal activity, which is part of the appeal of enhancements. However, research shows that this “incapacitation effect” varies across different types of offenders and that longer prison stays are wasteful when applied to people who are “low frequency” offenders.

When considering this bill and similar proposals, the state has the difficult task of balancing the costs of keeping people in custody— in terms of tax dollars spent on expensive prison beds as well as collateral costs borne by families and communities—against the potential cost to public safety.

Putting the Governor’s Sentencing Proposal in Context

Governor Brown has proposed a ballot measure—the Public Safety and Rehabilitation Act—that could significantly alter sentencing in California. If it qualifies for the ballot—which seems likely—and is approved by voters in November, the measure would allow non-violent felons who have earned enough credits for good behavior to spend less time in state prison. It would also shift the power to determine whether juveniles should be tried as adults from prosecutors to judges. The measure follows the path of decreased reliance on incarceration that California has been on since 2009.

Motivated primarily by a federal court’s 2009 mandate to improve health care and reduce overcrowding in the state’s prison system, California has implemented a number of measures that have considerably reduced the prison population. Since reaching a historic high in 2006, the prison population has dropped by 45,000, a decrease of about 26 percent, and the state’s overall incarceration rate is down to levels not seen since the early 1990s.

Although a number of policies have contributed to this decline, it is largely attributable to two recent major reforms: the 2011 Public Safety Realignment Act, or AB 109, which shifted responsibility for many non-serious, non-violent, and non-sexual offenders to county jail and probation systems; and Proposition 47, which reclassified some drug and property felonies as misdemeanors. Since January 2015, two months after voters approved Prop 47, the prison population has remained below the court-mandated target. That is good news for the state. However, the institutional population is only about 1.1 percent, or 900 inmates, below the target. Given this slim margin—and given the fact that the state still needs to show that it is providing adequate health care—the pressure is still on.

Californians appear to be supportive of lessening penalties for crime and downsizing state prisons. Recent criminal justice initiatives, such as Proposition 36 in 2012 (which revised California’s three-strikes law) and Proposition 47 in 2014, passed by rather wide margins—close to 70 percent and around 60 percent respectively.

Voters may well be inclined to see reductions in spending on prisons, and with good reason. California’s corrections budget continues to grow, with the governor requesting $10.6 billion from the General Fund for 2016–17—a historic high. This amount does not include more than $1 billion annually that the state transfers to counties to implement realignment. For 2016–17, the state is projecting the cost of the prison system to be almost $70,000 per prisoner. A significant reduction in the prison population could finally allow the state to stop the use of out-of-state contract beds and possibly close a state prison. These actions could potentially lead to hundreds of millions of dollars in annual savings. Without further reductions in the prison population, it will be difficult for the state to stop using contract beds and remain below the court-ordered population cap.

Finally, it should be noted that, unlike realignment and Propositions 36 and 47, which implemented changes based on the kind of offenses committed, this measure focuses mainly on the behavior of the offenders. After they earn enough credits for good behavior and achievements in education and rehabilitation, non-violent prison inmates can be paroled and released early. If this incentive is accompanied by effective educational and rehabilitative programs, it could reduce recidivism. More broadly, this measure, combined with the redirection of spending toward cost-effective crime preventive strategies, could help California use its corrections resources more wisely.

Chart source (TOP): California Department of Corrections and Rehabilitation (CDCR) monthly population reports.

Chart source (BOTTOM): California Department of Finance.

How California Reduced Its Prison Population

After years of struggling with a 2009 federal court order to reduce the population in the state’s overcrowded prisons, the inmate population has reached the target of 113,700 (based on current capacity), roughly a year ahead of schedule. A look at historic prison and jail data reveals that this milestone has been achieved to a significant extent by adding capacity and simply shifting inmates to institutions not subject to the court order. As a result, cost savings from the various efforts appear lacking so far. The state’s spending on corrections is now at a historic high.

Since reaching its peak in 2006 of about 163,000, the institutional prison population has dropped dramatically, by slightly more than 49,000. The court order mandated that inmate population be reduced to 137.5 percent of design capacity, or the number of inmates the facilities were intended to house.

Realignment, the state’s biggest correction reform, was a response to the court. It shifted incarceration of many lower-level felons and parole violators from state prison to county jails, beginning in 2011. However, a significant share of the prison population—about 18,000 inmates—declined before realignment. Most of this drop happened between 2009 and 2011 and was driven by policy changes such as SB 678, which created financial incentives for counties to lower the number of felony probationers they sent to state prison. Realignment then led to the largest decline, about 28,000, in the state’s institutional prison population. The post-realignment drop occurred in the first year of the reform.

The prison population did not start to decline further until November 2014, when voters passed Proposition 47, which classifies a number of drug and property offenses as misdemeanors instead of felonies. Since then, the institutional prison population has dropped an additional 3,000, which pushed the number of inmates below 137.5 percent of design capacity.

The state has met the crucial federally mandated target, but not—as reform proponents hoped—by a major reduction in costly prison incarceration. Here’s a rough breakdown of how this was achieved.

First, the decline of about 18,000 inmates in the institutional population prior to realignment was partly accomplished by housing about 9,000 offenders in private prison facilities out of state—a practice that continues on about the same order of magnitude. Second, since the implementation of realignment, the state has also incarcerated an additional 3,900 inmates in public and private facilities in the state. California has also opened up a new state prison health care facility in Stockton with a capacity of almost 3,000 inmates. Third, since realignment shifted responsibilities of many lower-level felons and parole violator to the counties, the county jail population has increased by about 11,500, as of June 2014 (the numbers may have come down some since then because of Proposition 47). In sum, roughly one half of the reduction of the institutional prison population since its 2006 peak was achieved by increasing capacity and simply shifting inmates to other facilities.

California has indeed seen a significant decrease in the reliance on incarceration over the last decade through policies like SB 678 and realignment, as well as initiatives like 2012 Proposition 36 (which revised California’s “Three Strikes” law) and Proposition 47. Our total incarceration rate has dropped from about 702 per 100,000 residents in 2006 to about 568. Unfortunately this is not reflected in the state’s expenditures. In fact, spending on corrections is now at a historic high. A look at corrections spending going back to the 1970s shows a long-term increase. In the current budget year, the state is spending more than $12 billion on corrections. In other words, meeting the federally mandated target does not mean that California has solved its incarceration problem.

Research shows that incarceration at current levels is not a cost-effective way to prevent crime. Clearly we need to refine our crime prevention strategy and look more closely for effective alternative approaches to manage public safety.