AB 109—Where Are You Now?

In April 2001, the Prison Law Office in Berkeley, California, filed a bold class action on behalf of California prisoners. The lawsuit, filed in the US Supreme Court, brought front and center a pernicious, festering problem that the California prison administrators had ignored, or worse, didn’t care about. The issue was overcrowding and the problems associated with inmates being forced to live, eat, work, and sleep in cramped, unsafe, and unhealthy environments.

During the decade-long delay for the Brown v. Plata decision to become binding case law, I entered the California prison system. I experienced firsthand what Justice Kennedy described in the court’s majority opinion. He wrote that a court order requiring California to reduce its prison population was necessary to remedy the overcrowded conditions in California’s prisons.

As I described in my book, Derailed, Justice Kennedy’s May 23, 2011, opinion included a list of factual findings of deficiencies in the prison system. These deficiencies made the level of serious overcrowding in California’s thirty-three prisons the primary cause of a violation of the Eighth Amendment’s ban on cruel and unusual punishment. Here’s a partial list of Kennedy’s findings, based on the record of expert findings considered by the court:

• Inadequate medical screening of incoming prisoners
• Delays in or failure to provide access to medical care, including specialist care
• Untimely responses to medical emergencies
• Interference of custodial staff with the provision of medical care
• Failure to recruit and retain sufficient numbers of competent medical staff
• Disorganized and incomplete medical records
• Lack of quality control procedures, including lack of physician peer review, quality assurance, and death reviews
• Lack of protocols for dealing with chronic illnesses, including diabetes, heart disease, hepatitis, and HIV
• Failure of the administrative grievance system to provide timely or adequate responses to complaints concerning medical care

The Significance of the Plata Decision

The Plata decision ruled that California must stop imprisoning so many people and that the state must take steps to reduce its prison population by thirty-three thousand. The decision led to California’s historic realignment process that continues today. The intent of the realignment process is to help the state reverse decades of overreliance on incarceration.

AB 109: Public Safety Realignment

The mandate of the Plata decision required California to undergo a dramatic transformation of its prison system. The decision ordered California to reduce its prison population to 137.5 percent of design capacity by June 2013—a reduction of roughly 40,000 inmates within two years. Assembly Bill 109 (AB 109) went into effect on October 1, 2011.

AB 109 requires three major changes in the California corrections system, summarized in Heather Rosen’s “What Does Realignment Do?”:

• Felony offenders who have never been convicted of a “serious,” “violent,” or “sexual” crime serve their sentence in county jail rather than state prison.
• Prisoners released from prison and convicted of a “non-serious,” “nonviolent,” and “non-sexual” crime [sometimes called non-non-nons] are subject to post-release community supervision by the county, rather than state parole board.
• Parolees not in the above categories who violate conditions of their parole serve their custodial punishment in county jail rather than state prison.

The goal of AB 109 is to reduce inmate recidivism by managing lower-level offenders at the community level in locally designed programs. My reading of AB 109, in this regard, makes no sense. The place a person is housed, county jail or state prison, does not impact the number of people incarcerated or the overcrowded conditions in which they live. As it turns out, the result does not rely on logic.

Funding

The funding of AB 109 is complicated by multiple trailer bills signed in 2011. To carry out the realignment’s transfer of offender supervision from the state to the county level, California is distributing $4.4 billion to the counties in 2016–2017. One problem with this plan is that counties retain significant discretion over AB 109 spending decisions. There is no single mandate for how funds are to be allocated. Some counties use these funds to expand status quo overcrowded conditions while others are making funding the sheriff and other law enforcement a priority. I don’t see much linkage between the funding schema and the goal of Plata—the reduction of prison populations. Rather the shifting of prison populations to jail populations.

Has AB 109 Reduced California’s Prison Population by 137.5 Percent?

As reported in the Los Angeles Daily News, “the [state’s] inmate population has reached its lowest level in 17 years [and] . . . the drop in the state prison population is due largely to the implementation of Assembly Bill 109, the state’s prison realignment plan aimed at reducing the prison population.”

It’s difficult to ascertain whether the 137.5 percent reduction in prison population has been realized. According to Morgan MacDonald’s “Reducing California’s Overcrowded Prison Population, Plata

ordered California to decrease its prison population to 137.5 percent of design capacity by June 2013 (California Department of Corrections and Rehabilitation, 2011). Although the design capacity of the CDCR is 83,219, the court order would require the state’s prison population to drop from the current estimate of 144,000 to approximately 110,000 inmates.

Statistics from the Public Policy Institute of California (PPIC) shed light on the question of compliance with Plata. Here’s that data:

• California’s prison population was 163,000.
• Plata ordered a 137.5 percent reduction in population of its prison-designed capacity.
• March 2015. The prison population stood at 112,300—135 percent of capacity.

The Plata decision is a concrete example of how national prison reform is accomplished through the judicial system. Not all cases make it to the US Supreme Court. The time, cost, and necessary talent to successfully pursue such cases are rare. Some cases are lost at the highest state court level. State governments have the power to effect change in housing conditions, rehabilitation, and reentry issues related to inmates, but without pressure from the public, often incentives for politicians to care about change evaporate or are ignored. It’s the function of the prison reform movement to not allow this to happen.

Your thoughts on the subject are welcome.

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