Brown v. Plata Ruling Highlights Need for Reform (Not Tax Increases)

A multi-faceted approach is necessary to finally reform California's correctional system

California’s correctional system is in a state of crippling disrepair. The latest confirmation of the state’s prison woes came in the form of the U.S. Supreme Court’s recent Brown v. Plata decision, which ruled California must reduce overcrowding at its prisons in order to improve conditions currently so poor as to be unconstitutional.

In 2009, a three-judge court was convened after California failed to fully comply with two federal district court rulings regarding the constitutionality of inmate care (Plata v. Brown and Coleman v. Brown.) The three-judge court found overcrowding continues to be the primary cause of the violations of the inmates’ rights to medical care (Plata) and mental health care (Coleman) during incarceration. At the time, California held about 156,000 inmates in a system designed for less than 80,000 inmates, representing utilization at almost twice the design capacity.

In its Brown v. Plata ruling, upholding both the two federal district court rulings and the three-judge court ruling, the Supreme Court found:

The medical and mental health care provided by California’s prisons falls below the standard of decency that inheres in the Eighth Amendment. This extensive and ongoing constitutional violation requires a remedy, and a remedy will not be achieved without a reduction in overcrowding.

Notes from the Brown v. Plata case reveal just how bad conditions are in California’s prisons. In one state-run prison two hundred inmates are living in a gymnasium, sometimes monitored by only two or three guards. In another, 54 inmates share one toilet. Mental health care is a serious problem, too. As the decision relates:

Prisoners in California with serious mental illness do not receive minimal, adequate care. Because of a shortage of treatment beds, suicidal inmates may be held for prolonged periods in telephone booth sized cages without toilets. A psychiatric expert reported observing an inmate who had been held in such a cage for nearly 24 hours, standing in a pool of his own urine, unresponsive and nearly catatonic. Prison officials explained they had “no place to put him.”

In the high court’s majority ruling, Justice Anthony M. Kennedy even took the unusual step of including pictures of some of the violative conditions in his decision. Such conditions likely contributed to a suicide rate the Court cited as “approaching an average of one per week,” 80 percent higher than the national average. Furthermore, the Court concluded, during 2006 and 2007, “a preventable or possibly preventable death occurred once every five to six days.”

California Gov. Jerry Brown had previously outlined a “realignment” proposal that would shift approximately 41,000 low-level criminals guilty of non-serious, non-violent crimes from state jurisdiction to local jurisdictions over a four-year period. The proposal also calls for shifting responsibility for parole violators, all adult parolee services, and juvenile offenders currently overseen by the Division of Juvenile Facilities to the local level. After the Supreme Court’s ruling Gov. Brown issued a press release touting the recently passed inmate transfer bill, AB 109, which enables the state to transfer certain types of felony offenders to county jails rather than state prisons. In writing the Opinion of the Court, Justice Kennedy acknowledges AB 109 as progress towards relieving overcrowding.

But transferring the remaining 33,000-inmates to counties is easier said than done. First, the State can’t afford to compensate county jails for these inmates, making it a severely burdensome liability at a time when many local governments are struggling with their finances as much as is the state. Gov. Brown’s realignment plan calls for providing local jurisdictions with $212 million in revenues in fiscal year 2011-12 and $821 million by 2014-15 when the plan would be fully implemented. However, the funding has not yet been approved and is apparently expected to come from Gov. Brown’s tax hike extension proposal. In fact, Gov. Brown and Senate President Pro Tem Darrell Steinberg wasted no time in using the Supreme Court’s decisions as an excuse to call for more taxes to pay for the inmate shift.

Moreover, many county jails don’t have the capacity to handle the additional inmates they would receive from state prisons. According to the nonpartisan Legislative Analyst’s Office (LAO), over one-third of counties are already under court-ordered jail population limits as it is.

To bring California’s correctional system closer to adequate-and constitutional-conditions, the state should adopt the following reforms.

Pursue Criminal Sentencing Reform. California needs to critically re-evaluate its penal code. According to the Stanford Criminal Justice Center, California has over 1,000 felony sentencing laws and over 100 felony sentencing enhancements across 21 sections of California law. Too often, in an attempt to boost “tough on crime” credentials, strict minimum sentencing laws have been imposed when more proportionate punishments-such as rehabilitation programs and drug courts-would have been more appropriate and cost effective.

Specifically, the notoriously ineffective “Three Strikes” law is nothing short of a millstone on the state’s correctional system. Under the Three Strikes law, individuals who have two prior “serious or violent” felonies-and then commit any felony, even a nonviolent one-face an indeterminate sentence of 25 years to life (eligible for parole after 25 years), which is in effect life imprisonment. According to Galit Lipa, supervising attorney at Stanford Law School’s Mills Criminal Defense Clinic, about 25 percent of the prison population in California is serving a sentence affected by the Three Strikes law, and a majority of those sentenced under the law are convicted for nonviolent drug offenses and property crimes. There are better ways to treat lawbreakers while protecting the public.

Rhode Island has been notably successful in implementing criminal sentencing reform. Rhode Island lawmakers eliminated mandatory minimum sentences for drug crimes, increased sentence reductions for inmates’ good behavior and granted judges more discretion when sentencing offenders. The results? From 2000-2008 the state’s prison population fell by 9.2 percent, the largest decrease among all states according to a March 2010 Pew Center on the States report.

Make Recidivism Reduction a Priority. California has one of the highest recidivism rates in the nation, whereby 70 percent of offenders will be locked up again within three years of their release. The system is clogged with non-violent offenders sent back to prison for several months for technical violations of their parole-such as missing appointments, failing to take drug tests, failing to secure work and housing, or not registering a change of address-when intermediate community-based sanctions such as house arrest, more stringent conditions of supervision, or day-reporting centers would be more appropriate and cost-effective.

The Department of Corrections should partner with a network of non-profit organizations, community groups, and for-profit companies to provide inmates better resources once they are released from incarceration. This recidivism reduction-centric approach (that Reason Foundation dubs “Corrections 2.0“) is already being explored in Florida and the United Kingdom.

Expand Use of Privately Operated Facilities. State officials are currently leveraging public-private partnerships to keep 15,000 inmates in out-of-state privately operated facilities in Arizona, Mississippi, and Oklahoma while saving money on prisoner supervision and care. It costs California about $47,000 a year to house an inmate in a state-run facility, over 50 percent higher than the national average and more than double the amount it spends to house inmates in out-of-state privately run facilities. California should expand the use of such private facilities. Counties should likewise be empowered to utilize private prison operators, either in or out of state, to lower their costs.

Last year a report by Reason Foundation and Howard Jarvis Taxpayers Association entitled Public-Private Partnerships for Corrections in California: Bridging the Gap Between Crisis and Reform estimated that California would save $1.7 billion to $1.8 billion by transferring 5,000 inmates a year for five years to out-of-state private prison facilities. California’s correctional costs are so high that the 3,060-bed La Palma Correctional Facility was built in Arizona by a private prison operator specifically to house California inmates at much lower cost.

Kicking the can down the road is no longer an option, and officials in Sacramento can’t simply tax their way out of this crisis. Policymakers should embrace an innovative multi-faceted approach to finally reform the state’s correctional system.

Harris Kenny and Adam B. Summers are policy analysts at Reason Foundation ( and co-authors of the Reason Foundation and Howard Jarvis Taxpayer Association study, Public-Private Partnerships for Corrections in California: Bridging the Gap Between Crisis and Reform.