Addicted to prisons

Jonathan Simon, a professor of law and associate dean at UC Berkeley's Boalt Hall, is the author of "Governing Through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear."

On july 23, two U.S. District Court judges ordered the convening of a three-judge panel to consider releasing prisoners from California’s alarmingly overcrowded state prison system. The judges’ move raises the possibility that a specific cap on the state’s prison population will come into place within the next few weeks or months. Californians should welcome such a cap, not because it would solve the problems caused by our state’s overuse of imprisonment but because it is likely to compel our paralyzed political branches to approach imprisonment more responsibly.

Gov. Arnold Schwarzenegger and other political leaders disagree. They suggest that any such cap would put dangerous criminals back on the streets. They prefer to rely on recent legislation that would build more prisons and place more beds in existing prisons to reduce overcrowding. Yet their own projections suggest that any significant reductions in overcrowding, especially at the state’s highest-security prisons, are years away.

The claim that a cap would place dangerous criminals on the streets raises the very question our politicians need to address: Who really needs to be in prison to keep the rest of us safe? The nearly 180,000 prisoners in California state prisons include thousands of inmates over 65 and tens of thousands who are there for parole violations that did not involve a new criminal offense. Many others are serving extended terms for property and drug crimes based on the state’s three-strikes law and other sentencing-enhancement measures adopted during nearly three decades of unrestrained politicization of punishment in California.

Today, California imprisons its residents at more than four times the level it did in 1980. Criminologists differ over whether this increase has helped reduce serious crime, or by how much, but virtually no qualified observer believes that the current readiness to use prison is the best way to protect Californians.


The massive prison system also strains our state’s ability to fund proven strategies for reducing crime, such as community policing, drug treatment and long-term care for the mentally ill. Other pressing problems in education and healthcare will never be addressed as long as our imprisonment habit continues unabated.

Even if we ignore these other state needs, prison construction alone cannot produce the safe and humane conditions behind bars that the U.S. Constitution requires. We have built more than 30 prisons since 1980, but our inmate population is nearly twice the design capacity of those prisons. Our correctional officer force is dangerously understaffed, creating real risks of violence to inmates and officers. This is happening despite overall reductions in crime in recent years. Our laws are simply too indiscriminate about who gets sent to prison and for how long.

The real problem lies not in our prisons but in our Legislature and our courthouses. Since the determinate sentencing law, which created fixed prison terms, came into effect in 1977, legislators have found that the easiest bills to get passed and signed are measures that lengthen prison sentences. The resulting laws give prosecutors extraordinary power to send local offenders to state prison without accountability for the costs of the resulting overcrowding.

To his considerable credit, Schwarzenegger has done more than any governor in recent decades to acknowledge and address this chronic structural problem. The governor is on target with his frank criticism of the existing strategy of “warehousing” offenders who only come back to their communities more dangerous, and his sense that we should keep more offenders at the local level in jails and reentry facilities is consistent with what criminologists have long believed.

But these moves do not stem the immediate emergency or address the long-term problem. Schwarzenegger has begun to show the way and has pandered to voter fears far less then his recent predecessors, but he should go further. The prospect of federal court-ordered prisoner release pushes the state to make the administrative decisions necessary to bring down the prison population. The governor should order the early release of nonviolent parole violators and require parole officials to review whether community-based measures can address the risks posed by future technical violators. Special legislation to allow early release of nonviolent offenders who are within a few months of completing their sentences also should be considered.

Even these measures will not be enough to free the state from its chronic overuse of prison. To do this, the governor must come before the people and speak the truth about our penal code with his trademark frankness. These are laws written by and for “girlie men.” We must learn to address serious social problems, like drug addiction, homelessness and threatening gang behavior, without indiscriminate recourse to prison. The governor should appoint a sentencing commission staffed with independent experts on crime and law enforcement to overhaul sentencing laws, with a mandate to reduce our reliance on prisons.

Some offenders pose a real danger of violence that requires the total preventive control of imprisonment. Others have committed such serious crimes that the harsh punishment of prison is called for. But as a state, we have stopped asking who does and does not belong in these categories. The prison cap is not the answer, but the impending threat of a cap is the only incentive that can break the paralysis in Sacramento that has packed our prison system and hobbled our ability to build a better future for Californians.