Realignment: Reducing Mass Incarceration and Public Safety: Evidence From California

By Clayton Becker

In 2011, Governor Jerry Brown signed Assembly Bill 109 into law following the Supreme Court’s decision in Brown v. Plata (2011) that a “court-mandated population limit is necessary to remedy the violation of prisoners’ constitutional rights.” The court found that high levels of overcrowding in the California Prison System amounted to a violation of the Eighth Amendment’s prohibition on cruel and unusual punishment. As a remedy, the court ordered California “to reduce its prison population to 137.5% of design capacity within two years.”

Realignment attempts to address this problem through remanding “non-serious, non-violent, non-sex” offenders back to local custody (California Realignment). This means offenders who meet the ‘three-nons’ criteria serve out their sentences in local jails rather than in state prisons. AB 109 also included an “alternative custody program” where some of these offenders would be eligible for a form of parole while still under the duration of their sentence.

It may not sound like a lot, but the scope of Realignment is massive, so much so that it has been called “the biggest correctional reform initiative in California history” (Petersilia and Snyder 306).

A companion initiative, Proposition 47, was passed by voters on November 4, 2014, amid concerns that AB 109 was not meeting expectations. Prop 47 “reduces certain drug possession felonies to misdemeanors. It also requires misdemeanor sentencing for petty theft, receiving stolen property and forging/writing bad checks when the amount involved is $950 or less” (Proposition). So, whereas AB 109 was intended to change where individuals were incarcerated, while not changing how severe their crime was considered in the eyes of the law, Prop 47 was intended to reduce the number of people convicted of felonies in the first place. Thus, Prop 47 reduces the penalty for all the above crimes but stops short of decriminalizing that behavior.

These two initiatives have two primary goals: to reduce the prison population and to reduce recidivism, a term which refers to “a person's relapse into criminal behavior…after the person receives sanctions or undergoes intervention for a previous crime” (Recidivism). The initiatives were intended to achieve those goals while maintaining public safety. This last goal is where the majority of criticism has been focused. An increase in property crime following the passage of the initiatives led many to believe that the initiatives themselves were to blame.

This paper analyzes both AB 109 and Prop 47 with respect to these goals, taking a view towards determining whether they have indeed achieved their desired results and whether they have done so without being a detriment to public safety. It finds that AB 109 and Prop 47 have been moderate successes, and, based on the best available evidence, are not responsible for recent increases in crime. However, this paper also finds that there have been major disparities in outcomes at the county level. These disparities need to be further studied and better understood in order to determine how other states may achieve similar, and indeed better, results than California has been able to.

Impact on Incarcerated Population

Assembly Bill 109
As of December 2017 (the most recent period for which data has been published), a total of 158,780 offenders had been sentenced to local custody under AB 109 rules instead of being incarcerated in state prison (Board). This has translated into a decrease in the total prison population from its peak of nearly 163,000 to approximately 115,000 (Goss and Hayes). A further 18,758 offenders have been sentenced to county level alternative custody programs. Furthermore, Angie Wootton writes that AB 109 does

“effectively reach the low-level offenders at the root of California’s prison overcrowding issue…All inmates eligible for post-release community supervision under AB 109 have committed nonviolent, non-serious, and non-sexual crimes, and are thus a lower-risk population” (7).
Practically speaking, these lower-risk offenders have a small risk of reoffending, and even when they do commit crimes their re-offenses are of a lesser severity. Thus, from a solely prison oriented point of view, we see clear evidence of AB 109’s success.

However, things are not as rosy as they might seem. While it is the case that prison populations went down after AB 109, jail populations skyrocketed, which poses its own unique set of challenges (Becker et al 10). As a result of the shift in population, several counties are facing the same challenges the state was before realignment was instituted. Alexander Becker and his colleagues wrote in 2013 that, “Alameda, Riverside, and Fresno counties [were] engaged in lawsuits concerning alleged unsuitable jail facilities and services.” This is not to say that AB 109 did not change the number of incarcerated individuals at all; it is also clear that total populations fell, just by not as much as a simple prison-only count would indicate. And because different counties have different challenges, many saw their corrections situation worsen rather than improve.

Likewise, there are financial challenges to reducing the prison population. By 2016-2017, the state had distributed $4.4 billion to the counties to assist them in managing the shift from prisons to jails. Crucially, however, it was left up to the counties to determine how to spend the extra funds, and spending priorities are radically different depending on which county is being considered. For example, sixteen counties have spent their funds almost exclusively on enforcement priorities and seven counties have spent their funds almost exclusively on programs and services (Lin and Petersilia 39 and 48). The large differences in spending priorities has meant “there is a lack of equality in how different counties provide services to AB 109-eligible individuals. Furthermore, there is a lack of equality in the amount of prison population reduction across facilities, leading to continual overcrowding issues at some facilities” (Wootton 8). As a result, it is hard to say that AB 109 has been a success with regards to reducing the prison population. While it has reduced the overall incarcerated population, it has also led to new challenges and highly disparate outcomes at the country level. At best, we can say that AB 109 has been a qualified success, at worst, it has merely shifted the locus of incarceration.

Proposition 47
In contrast to Realignment, Prop 47 took the middling steps of AB 109 and translated them into real progress in reducing the incarcerated population. According to a report from the Public Policy Institute of California, “the reported average daily population (ADP) declined by about 8,000 inmates in the period following Prop 47, bringing the jail system as a whole below its rated capacity for the first time since the rollout of realignment.” This represents a total decrease of only around 10%. However, is represents a much larger decrease in the ‘Prop 47 population’—those individuals whose crimes were reclassified as misdemeanors instead of felonies—the population serving time for Prop 47 offenses has decreased by around 50%. In other words, there are far fewer people incarcerated for the same crimes because those crimes are no longer considered felonious.

Likewise, the composition of offenses for which people were arrested changed significantly after the passage of Prop 47. For example, the number of bookings for drug possession fell from 68,838 to 22,336 after the passage of the law and low-level theft arrests fell from 38,952 to 27,013 (Bird et al. (a) 9). Drug and theft convictions also fell, from 25,492 to 13,404 and from 16,444 to 11,532 (10). Therefore, there are both fewer people awaiting trial in jail and fewer people serving time after trial. Bird and her colleagues write that these changes suggest a possible “reprioritization of local criminal justice resources” towards more serious criminal activity (10). It is possible that it may instead reflect a change in offender behavior, but as I will demonstrate later in the section on public safety, the former case is more likely.

However, as was the case with AB 109, there are disparate outcomes at the county level. For example, San Francisco County saw a drop in their Prop 47 ADP by only 18%, whereas Fresno County saw a decline of 62% and Los Angeles saw a decline of 47% (7). As a result, while the overall decreases are large at a macro level, they are more varied at a micro level.

Impact on Recidivism

Recidivism in California
Recidivism refers to the phenomenon of people reoffending after they have already been sanctioned for prior criminal behavior. Since the crime boom of the 1990s, California has struggled—more so than other states—to reduce stubborn recidivism rates. Before Prop 47 was passed, the two-year recidivism rate stood at 72.6%; almost three-fourths of all offenders released were rearrested within 2 years (Bird et al. (b) 17). Recidivism is an important metric for analyzing how effective the criminal justice system is because a large proportion of total crimes are committed by repeat, rather than first time, offenders. Therefore, if the recidivism rate is lowered, so too is the overall crime rate.

AB 109 and Prop 47 are both intended to reduce the severity and duration of criminal punishment. This places them between two schools of thought on the effects of imprisonment and severity on recidivism. One body of literature supports the idea that sanction and punishment do reduce recidivism rates while another, larger body of scholarship holds that imprisonment has a potentially criminogenic effect. This latter viewpoint is the more dominant of the two, to the extent that some have argued it is a matter of scholarly consensus (Matthews). For example, one recent study compares probation to prison as sanction and finds that “being sentenced to prison rather than probation increases the probability of a future prison admission within 3 y[ears] after release by 18–19 percentage points” (Harding et al. 11106). Another study from Keith Chen and Jesse Shapiro found that, at the federal level, “harsher prison conditions may induce greater post-release recidivism among former…inmates.” Lastly, a wide-ranging literature review concludes that “on balance, the evidence tilts in the direction of those proposing that the social experiences of imprisonment are likely crime generating” and that it is “low risk offenders” who are “most likely to experience increased recidivism due to incarceration” (Cullen et al. 60). Said more plainly, going to prison makes it more likely that a person will commit crimes later in life, harsher sentences increase this risk, and it is low level offenders who are most likely to experiences these effects. Taken altogether then, we would expect that Realignment and Proposition 47 would reduce recidivism as these are the very conditions they try to avoid.

AB 109’s Impact on Recidivism
AB 109’s impact on recidivism is as mixed as its impact on the overall incarceration rate. And, as before, the results vary starkly by county, ranging from a more than 30% increase in six-month recidivism in Ventura County to a nearly 15% decrease in Mendocino county (Bird and Grattet 12). Moreover, most counties saw at least a minor increase in recidivism. Bird and Grattet’s results indicate that, state-wide, “offenders whose supervision shifted from state parole to county probation under realignment were more likely to be rearrested and reconvicted for serious crimes than their pre-realignment counterparts” (14).

However, there are important caveats to this overall increase. First and foremost, while there is an increase for “serious crimes,” Bird and Grattet “find no evidence of an increase among the [AB 109] population after realignment” when using a broader measure of recidivism. Furthermore, “The recidivism outcomes of…offenders were better in counties that emphasized reentry services in their realignment plans than in those that emphasized enforcement” (20). The state very much encouraged emphasis on reentry services, but many counties, wanting to appear tough on crime, simply ignored
Sacramento’s overtures.

This is salient for two reasons. Firstly, it indicates that the above evidence does hold because counties that prioritized shorter, less severe strategies did see a drop in recidivism. Secondly, it indicates that those counties which did best are those that “matched their implementation strategy to…legislative intent” (20). In other words, counties that resisted the intent of the law, and continued to impose harsh sentences and long jail terms, fared worse than counties that embraced the legislation’s goals. A follow up study conducted last year found further evidence supporting this assertion. Offenders who received more lenient jail terms and were not required to be supervised after their release showed “better outcomes on all measures of recidivism, when compared with similar individuals released before realignment” (Bird et al. (c) 4).

These findings suggest two main conclusions. First, that realignment’s effects are highly unequal across counties, much the same as they were for the prison population as a whole. Second, that the best results are seen when the legislation is implemented as the state intended rather than in opposition to that legislative intent.

Proposition 47’s Impact on Recidivism
Proposition 47’s impact on recidivism is much less ambiguous: it decreased recidivism across almost all measures. This is most stark with regards to drug offenses, which saw recidivism rates drop from 32.3% to 21% when measured by arrests, and from 15.4 to 7.5% when measured by convictions (Bird et al. (b) 17-18). Overall, Prop 47 recidivism fell from 45.3% to 35% measured by arrests and from 25.4% to 14.1% measured by convictions (17-18). These decreases drove an overall decrease in recidivism, statewide, of 1.8% measured by arrests, and 3.1% measured by convictions (17-18). These decreases are modest of course, but they are still significant, especially when considering that Prop 47 is new, and grant programs intended to improve rehabilitative measures only started to distribute funds in 2016. Additionally, given the criminogenic effects of incarceration mentioned earlier, any decrease is a welcome one.

Sacramento’s grant programs are vital to the success and very institution of new, county level policy under the auspices of Prop 47. Mia Bird and her colleagues directly tie these grant programs to potential decreases in recidivism, writing, “over time, and as state savings are reallocated to support increased access to treatment, we may observe further reductions in recidivism tied to improvements in the underlying behavior of former offenders” (18). Furthermore, these grant programs have a built-in evaluation clause, stating that jurisdictions must spend 5% of their grant on analysis of the program funded. When the full reports are published in 2020, “they could provide a chance to learn which strategies are most successful…If these programs are successful, other agencies could adopt these strategies to treat similar populations in their jurisdictions and across the state” thereby further reducing recidivism (20). Thus, Prop 47 provides the dual benefits of reducing criminogenic incarceration and increasing rehabilitative programs that can further reentry into society and mitigate
California’s high recidivism rate.

That said, it is still early days with regards to the effects of Prop 47. Therefore, while these conclusions and opportunities are more likely than not to provide a benefit to the state of California, it is not possible to say with full confidence that they will continue as intended. It is up to policymakers to make sure that programs are well implemented in order to achieve the best possible outcomes.

Impact on Public Safety
AB 109 and Prop 47 have been blamed for supposed increases in crime after their passage. In particular, they have been blamed for increases in property crimes. An organization called “Taking Back Our Community,” largely made up of suburban city governments, has been very vocal about their opposition to the proposals. One of their videos asks, ominously, “lately, have you been feeling…less safe,” and follows it up with “Law enforcement officials agree that these increases [in crime] are happening because of recent changes to California’s criminal justice system” (Taking). This is perhaps the most important question surrounding these two initiatives. It is all well and good to reduce the prison population, or to reduce overall recidivism rates, but if it comes at the expense of public safety then it might as well be for naught. So, are AB 109 and Prop 47 to blame for increased levels of crime?

First and foremost, it is important to note that law enforcement officials’ agreement on what is causing the increases in crime is not the gospel truth. After all, they ignored the criminogenic effects of incarceration for decades and are the principal agents behind counties that prioritized enforcement rather than reentry. As we recall, it was precisely these counties that had poorer outcomes while their counterparts fared better (Bird and Grattet 20). Furthermore, their pronouncements do not stand up to scrutiny.

California’s crime rates are historically low and have been falling for some time. According to Lofstrom and Martin, property crime rates peaked in the 1970s and have since fallen to their lowest levels since 1960. Likewise, violent crime, which reached its zenith in the 1990s, has also been falling for decades. Neither property crime nor violent crime have seen major increases since the implementation of AB 109 and Prop 47. But, we again see salient differences from county to county. For example, the robbery rate in Los Angeles County and the Inland Empire was more than five times that of the Sierra region, and San Francisco County experienced more than three times the rate of property crimes as neighboring San Mateo County.

However, while it is true that there have been isolated increases in crime and differences at the county level, on balance the picture is positive. According to Mike Males of The Center on Juvenile and Criminal Justice, crime has actually fallen over time during California’s criminal justice reform era, defined as 2010-2016. Collecting data “reported by law enforcement agencies in 454 cities and 57 outlying areas,” Males writes, “a majority of jurisdictions (283, with 22.3 million people) showed decreases in violent crime. For property offenses, 213 jurisdictions reported increases, with an average rise of 12.8 percent, and 298 showed declines averaging 18.1 percent.” Therefore, at a state level, crime has fallen for a majority of Californians. But, while it is the case that crime rates have gone down for the majority of California’s citizens, the evidence again demonstrates the fact that there is immense variation across jurisdictions, reflecting the fundamentally local character of the programs, and showing that a great many counties continue to experience higher rates of crime.

Another even more rigorous study was recently published by Bradley Bartos and Charis Kubrin, criminologists at the University of California at Irvine. Bartos and Kubrin’s work represents the first systematic effort to analyze the effect of Proposition 47 on crime rates in the state. They find that the passage of the proposition had almost no statistically significant effects on crime rates in the state. They employ a synthetic control model, creating a “synthetic California” that did not experience the policy change of Prop 47, and use a standard difference in difference approach to show that most changes in the crime rate in California are not statistically different from changes in the crime rate in the synthetic control group. Even the changes that are statistically significant are only so with particular specifications such that the authors say it is impossible to rule out spuriousness. Likewise, given their findings that the changes in crime predate Prop 47’s passage, or mirror changes in crime elsewhere, it is unlikely that significant changes in offender behavior have occurred. And, at the very least, if these changes have occurred, they have likely not been the result of Prop 47. Therefore, we can say with some confidence that declines in the rate of arrests and convictions for low level offenses do indeed reflect reprioritization rather than changes in criminal behavior.

This analysis is vital for our understanding of Prop 47’s impact on crime because it represents the best evidence we have to date. There are no other scholarly analyses to draw from. Thus, the best possible evidence we have suggests that “these reforms are not associated with meaningful increases in crime” (Bartos and Kubrin 711). Thus, it would appear that critics’ charges against Prop 47 are not born out by the evidence and analysis that has thus far been collected and conduced. As a result, we must say that AB 109 and Prop 47 have largely succeeded in achieving their goal of decreasing incarcerated populations and recidivism rates while still maintaining public safety.

This paper yields several key conclusions and presents an opportunity for other states to look to California as an example of how to achieve criminal justice reforms without compromising public safety. Firstly, we see that AB 109 and Prop 47 did in fact achieve a measure of their goals. They dramatically reduced the total number of people incarcerated in the state and modestly reduced the recidivism rate. This has substantial implications not only for the cost of corrections in California, but also for the quality of life of former inmates once they reenter society, and for long term decreases in criminogenic incarceration practices.

Secondly, we see that they were able to achieve these results without harming public safety. And while research on this area is less robust, the fact remains that opponents of AB 109 and Prop 47 are making claims that are not backed up by the empirical evidence.

However, a major caveat this paper presents is the extent to which outcome vary across counties and other jurisdictions. In everything this paper has examined, we see major differences depending on which county is examined. This suggests that the effect of these reforms is highly contingent upon how the counties choose to implement them. Likewise, it indicates that not all of California’s counties have been affected equally. Many have found themselves, for one reason or another, grappling with new challenges that were not foreseen by state lawmakers or California voters.

Taken altogether then, AB 109 and Prop 47 should be considered qualified successes. They have had a beneficial effect on the state as a whole, but this benefit is not felt equally across the states’ counties—from both the counties’ and the inmates’ perspectives. However, one thing remains clear, given the size and scope of California’s reforms, they must serve as a starting point for all other states considering similar reforms. As Bartos and Kubrin write, “as the nation debates prison downsizing, clearly the experience of California must be front and center.” As the country’s largest and most diverse state, its efforts must be looked to when other states take their own steps to reform their criminal justice systems. One of the greatest things about the states is their ability to function as ‘laboratories of democracy,’ and the California experiment’s results are of vital concern to all.

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