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The American incarceration rate is not only the highest it has ever been, but it is arguably the highest in the world-and not just by comparison to developed G8-type countries. With the possible exception of China, where “administrative detention” is the large, mysterious factor that makes published imprisonment numbers suspect, the United States stands alone in the world. The sheer numbers-two-thirds of 1 percent of Americans are now serving jail or prison sentences-are embarrassing enough, especially because of their racial disproportion. But things are worse than the sheer numbers. We do not have enough space for the prisoners we incarcerate, and we mismanage their time and their transition back into society so badly that the potential crime-reducing effects of prison are blunted. True, the crime rate has dropped significantly in the last decade, but statistical experts observe that the huge jump in incarceration in recent years gets only fractional credit for that success-even before we account for other costs it may impose. All these problems are magnified in California, which has the most inmates (170,000 in the state prisons), and which probably suffers the worst population-to-space ratio among larger states. In 2004 the state’s oversight body, the Little Hoover Commission, concluded that California had the most dysfunctional prison system in the nation. Getting to the bottom wasn’t easy. It took an almost unearthly combination of political manipulation, incompetence, and fiscal recklessness. That same combination has made a fantasy out of the very practical step that could save the state-creation of a government entity to conduct basic cost-benefit analysis about incarceration while enjoying at least partial insulation from short-term political pressure. The story starts in the 1960s, when President Richard Nixon showed the value of running a law-and-order, president-as-county-sheriff campaign. Thereafter, demagoguing crime became a standard campaign tool for American politicians. The war on drugs was declared in the 1970s, and many jurisdictions enacted draconian drug laws, most notably the infamous Rockefeller mandatories. In that same decade, the rate of incarceration in the U.S. started its sharp upward trajectory; the states also vastly increased prison construction-though not fast enough to keep up with the inmate population boom. Many new prisons were financed by floating capital bond issues, thereby finessing the issue of short-term taxation when the costs of construction had to be sold to voters. These were all national trends in which California happily took part. But there were also some factors peculiar to California, such as a political culture especially susceptible to short-term populist uprisings. The use of public referenda exacerbates the problem, because the legislature provides fewer checks than in other states. And perhaps the sunny optimism of California has led to more recklessness in fiscal policy. But perhaps the biggest cause was the 1976 Determinate Sentencing Law (DSL). In the 1970s, like many states, California moved away from flexible models of sentencing, and imposed tight restraints on judicial discretion. In California, this shift resulted in a uniquely complex structure. The basic sentence attached to any crime is fairly straightforward, but a complex menu of enhancements and special aggravating factors often makes that sentence longer, and also harder to predict. A series of fragmentary, chaotic amendments has only exacerbated the problem. And perhaps the most dysfunctional feature of this dysfunctional system is parole. In California, the old-fashioned idea of a parole agency releasing some long-term prisoners after many years of good behavior applies only to inmates convicted of a few of the most serious crimes. For the vast majority of state convicts, parole is a sort of a postsentence probation-typically three years long-after the prisoner has completed his sentence and been released. If an ex-con violates parole, he is often sent right back to state prison for a few months or as much as a year. What is a violation? Most obviously, it is commission of a new crime. But an “administrative violation,” such as failure to attend required counseling or changing residences without permission, can also send a person back to prison. Moreover, even when a violation is clearly a new crime, the prosecutor often prefers the cheaper and easier sanction of treating it as a parole violation. This strange system makes the flow of people in and out of prison hard to predict or manage. State prison populations can be almost as volatile as a county jail population. Moreover, inmates bouncing in and out of prison (often on a repetitive cycle) are not likely to make a successful reentry. That is a major reason why California has a huge recidivism problem. Another is that California suffers from a horrendous paucity of programs for preparing inmates for their entrance back into society. And here we are not speaking of 1960s-style romantic notions of turning bad characters into good ones, but the most uncontroversial types of drug rehabilitation and vocational training. The lack of antirecidivism programs is partly contingent on the overcrowding problem, because even where a program is available, the classroom in which it would be conducted has often been commandeered for bunking of prisoners. Since 1980 the number of prisons has gone from 12 to 33, but the spaces within those new prisons did not keep up with the simultaneous 500 percent increase in prison population. Best estimates are now that the prisons have twice as many inmates as the buildings were designed for; inmates are in double- and sometimes triple-bunked beds, often lined up in hallways and gymnasiums. As a result of this mess, virtually the entire system has been taken over by the federal judiciary. In the 1990s, acting on litigation brought under the Eighth Amendment’s prohibition on cruel and unusual punishment, Pelican Bay, the state’s high-tech “supermax” prison, was declared an Eighth Amendment disaster. Among the reasons were that prisoners were exposed to severe violence from other inmates and even guards. In addition, inmates’ mental health problems were worsened by egregious confinement in dark and cramped spaces. As a result, a special master appointed by the court became Pelican Bay’s de facto warden. More recently, in 2001, class actions were brought against the medical and mental health care programs of the entire prison system in the U.S. district court for the Northern District of California. The lawsuits alleged that prisoners were not receiving even minimal medical care, and therefore suffered gratuitous exacerbation of illnesses and injuries. The district court agreed with the plaintiffs that the system suffered from a severe shortage of qualified physicians and nurses; the protocols for intake screening of prisoners were chaotic; the lack of coordination of pharmacy records deprived inmates with chronic conditions of needed medication; and understaffed and poorly supervised prison personnel were unable to arrange security and transportation for ill and injured inmates to medical facilities. Ultimately, a number of prisoners died of preventable causes, and the system lacked the standard “death review” protocol that makes self-correction possible. As a result, the court declared the entire medical delivery system unconstitutional and appointed a receiver to reconstruct the system. That receiver has the power to enforce massive structural changes in the system and to demand vast state expenditures to do so. And that appointment carried the implicit threat that if the receiver decided that the state was not making sufficient progress toward alleviating the medical situation, the court might consider the ultimate Damoclean step of releasing of prisoners. While California was going to incarceration hell, a few states managed to reconfigure their political institutions and realign their political attitudes to bring some sensible cost-benefit analysis to sentencing. Many created bipartisan or nonpartisan mechanisms, often sentencing commissions, to which legislatures ceded some sentence-setting authority. These commissions generate flexible sentencing guidelines and also gather and analyze data to inform legislators about the wisdom of future changes in sentencing law. These states have done reasonably well in redirecting resources toward incarceration of the more violent, alternative sentences for the demonstrably nonviolent, and flexible schemes for governments, which allows them to adjust to changes in serious crime rates and budget crises. Interestingly, some of these states are in the Deep South, a part of the nation traditionally notable for both high crime and high incarceration. Many thought the federal court takeover would serve as a useful political crowbar to get the California legislature to adapt some of these reformist measures. The Little Hoover Commission urged the creation of a state sentencing commission. Even the California Correctional Peace Officers Association, the prison guards union long seen as being among the toughest of the law-and-order crowd, came out for a sentencing commission. But there was little movement toward a commission under Governor Gray Davis, a Democrat who, for political reasons, took only the most conservative possible positions on criminal justice. Also opposed to a commission were the California district attorneys, who advanced the lawyerly argument that any commission with even presumptive sentence-determining power would represent an unconstitutional, or at least highly imprudent, delegation of legislative power. A less lawyerly argument came from some legislators, who argued that a commission would inevitably end up releasing prisoners, and that the threat to public safety was intolerable-in short, that cost-benefit analysis remained a forbidden subject for public discourse. Davis was recalled from office in 2003 and succeeded by Arnold Schwarzenegger. By virtue of being a Republican, Schwarzenegger came to office with an unusual amount of political capital to spend on sentencing reform-capital that a Democrat might lack. In addition, Schwarzenegger is a highly pragmatic Republican. In 2007, at a time when the state’s finances were beginning to look shaky, the governor convinced two-thirds of the legislature to pass AB900, a bill clearly designed to improve the system just enough to keep the federal judges from imposing an absolute cap on the prison population. It called for billions of dollars of funding to expand the number of state prison beds, create some rehabilitation and reentry programs, and provide incentives for counties and cities to share the burden of housing state prisoners. To critics, the bill was, at best, a minor gesture in the direction of mitigating correctional problems. Most notably, the federal judges in the health care case and the related mental health care case have vigorously denounced AB900 and related state measures as woefully insufficient. In doing so, they took a drastic legal step toward the possibility of the very thing that legislators had declared the unacceptable consequence of creating a commission-a wholesale early release of prisoners. Under a recent federal statute enacted to limit prisoners’ rights to bring lawsuits against state prisons, the early release of prisoners can only be ordered by a special three-judge panel appointed by the chief judge of the relevant federal appeals court, on request of a district court. But last fall, the two district court judges made such a request, and the panel has now been formed. So we are now in a very unstable equilibrium. The court receiver in the medical care class action has stared the legislature in the face and asserted that he will need several billion dollars right away to bring health care delivery into compliance with minimal Eighth Amendment standards. At the same time, the subprime-fueled economic downturn in California has only made it harder to generate legislative willingness to spend the money. A moderate optimist can hope that, at some point, wise heads in the legislature will make a serious attempt at fixing California’s prison fiasco, and some legislative fixes may lead to some relief from federal court pressure. If that happens, the unusual legal and political combination that is running the system will deserve at least some of the credit. But even that moderate optimism might not be well-founded. The unwieldy combination may well continue along an uncertain and tortuous path for some time. And in the end, legislators won’t have much choice if the court exercises all its jurisdictional leverage. Robert Weisberg teaches criminal law at Stanford Law School and codirects the Stanford Criminal Justice Center.

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