California has run out of prison cells. Many of its 33 prisons now operate at over 200 percent of capacity, crowding inmates into triple bunks in prison gymnasiums. These conditions have been shown to impede medical care delivery, spread epidemics, and increase the risk of violence to inmates and staff. The situation is so dire that in 2006 Governor Arnold Schwarzenegger issued an emergency proclamation, stating that crowding “caused substantial risk to the health and safety of the men and women who work inside these prisons, and the inmates who are housed within them,” and he vowed to solve the problem. But prison construction is expensive, and in the years since the governor’s declaration, the state has proved unable—or unwilling—to build its way out of this crisis.

So, in February, a federal court in San Francisco ruled that overcrowded conditions violate inmates’ Eighth Amendment rights against cruel and unusual punishments, and the court indicated it will issue a release order that could force the state to reduce its inmate population by 55,000. In other words, if California cannot provide enough space to safely confine all its inmates, it will have to confine fewer of them.

While the state holds many prison-related records in the United States—the largest state prison population, the most expensive system, and the most severe overcrowding—it is not unique. Many US states are coming off a decades-long incarceration binge that has locked up more people faster, and for longer periods, than at any time in history. More than seven million Americans, or one in every 31 adults, are incarcerated, on probation, or on parole. According to a study by the Pew Foundation, the total costs of this incarceration reached $47 billion in 2008, and these costs have quadrupled in the past two decades. Even in the economic boom years of the 1990s, prison funding did not keep pace with prison growth. Heading into financially lean times, many in the United States are wondering whether its time for a change of course.

California Sets Unfortunate Precedent

In 1980, California housed 24,000 prisoners in 12 prisons, but today it has about 170,000 prisoners in 33 state prisons. Although some of this expansion comes from arresting and penalizing more criminals, a large share also comes from policy decisions that have changed the way California and the entire country have locked people up.

What are these policies? First, California was an early leader in determinate sentencing laws, which impose mandatory sentencing guidelines and curtail judicial discretion. California’s Three Strikes Law, passed in 1994, imposes fixed increasing sentences for successive felonies, resulting in longer sentences for repeat offenders. For example, in California, there are nearly 700 people serving sentences of 25 years-to-life for non-violent third-strike offenses such as shoplifting.

Many states passed mandatory sentencing laws in the last two decades, especially for drug crimes, but California is notable for the number of laws passed through direct ballot initiatives rather than through the legislature. This system has allowed voters to enact stringent crime laws with neither legislative oversight nor plans to pay for the associated costs.

California is also the only state that requires that all prisoners be granted parole (technically, post-correctional supervision) and that they be re-incarcerated immediately for violations such as missing a meeting with a parole officer or associating with former gang affiliates. As a result, more than 70,000 parolees a year return to California prisons, though many have not committed new crimes. In most states, about one out of three people who enters prison does so for a parole violation, but the rate is two out of three in California.

With these laws and policies in place, California spends over $10 billion a year, or about 11 percent of its budget, on corrections, which is more than it spends on education. At the same time, California, already suffering from budget deficits, has been hit hard by the global financial crisis and is scrambling to close a projected $40-billion budget gap.

In this economic climate, the federal court decision is timely. The court predicts that its mandated reduction in prison population will save California $1 billion per year while expanding community-based alternatives to incarceration. But the state has already vowed to appeal, arguing that the federal ruling amounts to a general amnesty that will release dangerous criminals back into society. In fact, the proposed plan would likely involve a number of revisions to the parole system and changes to good behavior credits, and would be aimed at non-violent offenders.

But the response shows the state’s difficult position: while prison spending is exorbitant, tough law enforcement policies remain politically popular. In November 2008, California voters passed a ballot measure that reduced parole opportunities for “lifer” inmates and expanded victims’ roles in parole hearings—despite its projected annual cost in the hundreds of millions of taxpayer dollars. In contrast, a measure that would have saved money by expanding drug treatment and diversionary programs while reforming parole was voted down. Ironically, the federal court ruling from February tentatively ordered many of these very same measures.

Rest of Country Learns From California’s Experience

Many other states are facing similar problems and trying to learn from the situation in California. New Jersey has made changes to its parole system so that, rather than send everyone with a technical parole violation back to prison, parolees will first receive a risks and needs assessment. The policy change should save New Jersey over $16 million this year. Kentucky, also facing budget deficits due to prison costs, recently enacted a program that gives parole violators credit toward their sentences for time they spent on parole.

Overcrowding has been looming in Michigan for years, and in 2003 the governor asked the Michigan Department of Corrections to develop a five-year plan to avoid an imminent ROBD (Run-Out-of-Bed Date), when prisons will simply not be able to take in more inmates. The department is scrambling to meet a mandate to cut its budget by $120 million by 2010 and to reduce its prison population by 3,500 by October 1, 2009, in part through early releases.

Increased funding for prisoners remains politically unpopular all across the United States. At a time when law-abiding citizens are themselves losing social services, even fewer want to invest billions to improve conditions in prisons. Still, constitutional democracy in the United States guarantees its citizens, including its worst criminals, the same basic protections. In California, the courts were forced to intercede to deal with problems of overcrowding. Fortunately, it appears other states are working to avoid the mistakes made in California—and saving money in the process.

Related link: