If the real-world consequences for individuals and communities were not so potentially dire, the mass release of inmates from California prisons just ordered by the Supreme Court would carry considerable interest as a criminological experiment. For decades, academics and advocates have argued that the U.S. is over-incarcerating its criminal population. Driven by irrational fear and political cowardice, the anti-incarceration lobby maintains, we are locking up harmless sad sacks who should never have been sent to prison in the first place. Recently, academics such as Columbia law professor Jeffrey Fagan have gone one step further: Not only are the country’s incarceration policies unnecessary, they’re positively harmful to communities. Sending convicted offenders to prison breaks apart stable families and prevents other families from forming in the first place. High rates of incarceration tied to certain communities are not the result of high rates of crime, in this view; they are, rather, the cause of those high crime rates.
With regards to California in particular, anti-prison advocates argue that the state enforces draconian policies with parole and probation violators: it sends them back to prison far too frequently. Missing a parole appointment, or being found in gang territory in violation of your conditions, the advocates say, shouldn’t be treated as such a big deal. Anyone can slip up.
In fact, we have already lived through this coming experiment. During the 1960s and much of the 1970s, America had a very low rate of incarceration, even though crime was blasting through the roof. In 1967, James Q. Wilson wryly observed in The Public Interest: “Other than drunks, the average criminal or delinquent will so rarely be sent to jail that the large numbers of inmates can be explained only by assuming that they were born there or wandered in by mistake.” It was precisely because our lax incarceration policies seemed to be contributing to, rather than lessening, America’s crime problem that states gradually began decreasing judicial discretion in sentencing offenders to probation or issuing lax sentences. Starting in the late 1970s, states began imposing mandatory sentences and three-strikes felony laws and requiring that offenders serve most of their sentences. The prison population unquestionably grew: the per-capita rate of imprisonment tripled from 1973 to 2000; the number of state and federal prisoners grew fivefold between 1977 and 2007, from 300,000 to 1.59 million. During the 1980s, national crime rates were variable even as the prison population inexorably rose. But in the 1990s, as the incapacitative potential of prison reached its maximum “throw weight,” in UC Berkeley criminologist Frank Zimring’s phrasing, crime nationally began a long, unprecedented drop, when the greatest number of criminals was off the streets. Coincidence? California may find out.
There is already reason to doubt that the rosy future of a lowered prison population and a lowered crime rate predicted by anti-prison activists will come to pass, since some of their premises are incorrect. First, it is not the case that we’re sending innocuous bumblers to prison. In fact, prison remains in most places a lifetime achievement award for persistence in criminal offending. The JFA Institute, an anti-incarceration advocacy group, estimated in 2007 that offenders ended up in prison in just 3 percent of violent victimizations and property crimes. In 2004, only 1.6 percent of burglars were in prison, according to the federal Bureau of Justice Statistics. It can be unsettling for a layman to hear a big-city prosecutor’s typology of crime: “non-serious crimes” consist of basically everything you can do criminally without a gun or other use of force. Steal a car and you get probation; hijack a car with a driver in it, however, and you’re going to prison. The person who just lost a car, even if fortunate enough not to have been threatened while in it, probably doesn’t regard the theft of his vehicle as “non-serious.”
Second, parole violations are not trivial. If a criminal is missing his appointments without a valid excuse—such as a job interview or medical appointment—and without notifying his parole officer, it’s likely that he is up to no good.
Most Californians are undoubtedly feeling dread today reading about the Supreme Court’s decision. My guess is that the state will find a way to avoid a mass prisoner release, whether by quickly commissioning new prisons, relocating state prisoners to already overcrowded county jails, or sending prisoners out of state. Though it is too late now to make any difference in the immediate prison budget, it remains imperative to restore sanity to the state’s public-pension system. If the state weren’t obligated to pay its corrections officers such high salaries and pensions, it could have built more prison capacity. Unfortunately, Governor Jerry Brown just struck another sweetheart deal with the corrections union, the California Correctional Peace Officers Association.
If California does in fact release upward of 40,000 prisoners before their sentences are up, we should start measuring crime rates in the state with close attention. To give the anti-prison advocates their due, every prison sentence must in fact end at some point unless we are prepared to keep criminals off the streets for life, and sentencing is far from a precise science based on a clear knowledge of risk. It seems unlikely, but it is nevertheless conceivable, that releasing prisoners before their time is up will have no effect on crime. But just to be on the safe side, perhaps the California-based federal judges who ordered the release and the five Supreme Court justices who affirmed it could volunteer to take the bulk of the newly sprung offenders into their own communities.