By Jeff Nye, J.D. Candidate

Last May, the Supreme Court ordered California to reduce overcrowding in its prison system “without further delay.”[1] The Court pointed out that the prisons were operating at 200% of design capacity, and had been doing so for eleven years.[2] “After years of litigation, it became apparent that a remedy for the constitutional violations would not be effective absent a reduction in the prison system population.”[3] For a state already facing well-publicized budget problems, the required reduction of potentially 46,000 prisoners[4] must have seemed overwhelming. However, in the four months that have passed since the Supreme Court’s order, California has devised at least three possible methods it can use in an effort to come into compliance.

Building and Shifting

Perhaps the least innovative solution to the problem of prisons that are bursting at the seams is the idea of simply constructing more prisons. Less than a month after the Supreme Court order came down, the Wall Street Journal reported that California had unveiled a plan that “relies mostly on moving low-level offenders to county jails and building new prisons to accommodate serious criminals.”[5] While it is commendable that California moved quickly to address the problem, a couple of criticisms come to mind.

First, shuffling prisoners around and constructing additional places to hold them seems to be more of a Band-Aid and less of a cure. The opportune time to discuss drastic changes in California’s prison system, and perhaps the entire criminal justice system, seems to be right after this kind of order from the Supreme Court is issued. If, instead, California opts for the quick fix of building new prisons, it will probably be faced with a similar problem in the not-too-distant future.

Second, who is going to pay for this? Apparently, Governor Brown wants to use about $6 billion a year from sales and car tax to help counties cover the costs they will incur by accepting additional prisoners.[6] And, that says nothing about the cost of constructing new prisons and the operational costs that will attach.

Flash Incarceration

One of the reasons that California’s prisons are so full is because people keep coming back. In California, the typical punishment for ex-convicts who violate their parole is an additional four months in prison. It was recently reported that as many as seven out of ten parolees are sent back to prison for this purpose.[7] However, a new approach is currently being tested that has, thus far, shown positive results.

The basic idea is that parole violators are punished with immediate, but short, stints in the county jail. Any violation of parole conditions—such as missing an appointment, testing positive for drugs, failing to attend anger management or substance abuse classes, or other technical violations—results in an immediate “flash incarceration” that can last up to six business days.[8] Even multiple flash incarcerations end up costing the taxpayers less than a single parole violation under the traditional program. While official results of how the trial program affects criminal habits are not yet available, preliminary results have been described as “remarkable.”[9]At this point, only 2% of those in the trial program are testing positive for continued drug use.[10]

This method is certainly innovative, but whether it will be effective, and to what extent it can be effective, is yet to be seen. Obviously, flash incarceration by itself will not fix California’s problem. This method is targeted at individuals who have already spent time in prison, so regardless of whether or not they come back due to a parole violation they have already contributed to the problem of overcrowded prisons.

Letting Incarcerated Moms Go Home

Another new program in California will allow thousands of female inmates who are pregnant, or who acted as the primary caregiver to their child before being incarcerated, to go home.[11] Of course, certain qualifications must be met. The inmate must not have been convicted of a serious or sexual crime and must have two years or less remaining in her prison sentence.[12] Once at home, the mother will wear a GPS tracking device and report to a parole officer.[13] Some of these female inmates will be released from the prison system, but will be required to go to drug treatment centers or halfway-houses rather than to their own home.[14]

A law passed last year, before the Supreme Court’s order to reduce the prison population, technically authorized the program. But, now that the state is under a time limit to come into compliance with the order, it is pushing forward. The law was intended to target female inmates who are mothers, but now there is talk of expanding the program to include male primary caregivers as well.[15] Because males make up 90% of California’s prison population,[16] an expansion of the program to include fathers could go a long way in helping to reduce the prison population.

This may be the most controversial of the methods California is using. Some prosecutors and victims’ rights advocates argue that foster care may be better for the children than being reunited with a parent who is also a convicted felon. It may also face public perception problems, as it closely resembles what Justice Scalia called the “outrageous result” of simply releasing convicted felons.[17]  Practically speaking, this solution suffers from a similar problem as flash incarceration. Because females only make up 10% of the prison population, and not all females would qualify for this program, it will not have the kind of far-reaching effect that California needs.

Moving forward, California probably will have to utilize some form of each of these solutions, and probably more, in order for it to cut its prison population down to constitutional size.