Politicians break promises. That’s nothing new. However, it is rare for one to reverse course as drastically as Governor Jerry Brown. After fighting for AB 109, the legislation known as Realignment that shifted the responsibility for some felony offenders from state prisons to counties, Brown has declared melodramatically that the prison crisis in California is over. This month, a federal three-judge panel begged to differ. US District Judge Lawrence K. Karlton ordered Brown to continue reducing the state prison overcrowding and to improve its inhumane health care systems. He told the justices to shove it

Judge Karlton replied he will hold Brown in contempt of court if he does not comply within three weeks of the decision date.


Why did Brown reverse course? In April of 2011 Brown signed AB 109 and touted his commitment to making California’s state prisons humane. At the time, however, he was waltzing cheek to cheek with one of the largest budget deficits in California history. Harsh rhetoric on law and order typically declines along with budgets and now that the coffers have started to improve, Brown has resorted to 1990’s-style sensationalizing of crime (which gave us the Three Strikes Laws, among others).

On April 16 Brown said that he will wait until the US Supreme Court orders him to comply with the court’s 2009 order (reiterated in April 12’s decision) that he “reduce overall prison population to 137.5% design capacity by December 31, 2013.”

Did Brown forget that in May 2011, the Supreme Court ordered him—vehemently—to comply with the federal judges’ order? In the decision, Justice Kennedy wrote: “A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society.”

And though Brown says he has civilized the California prison system, his evidence for improvements makes little sense. “Things have changed,” he told press recently, “We’ve spent billions and billions of dollars....” High spending for prison budgets are usually cited as a sign of dysfunction—and clearly no judicial body is impressed with his accomplishments.

Instead of complying, Brown has set aside the humanitarian and legal issues and reverted to every politician’s trusty strategy—fear-mongering. He said that when the Supreme Court orders it, “We [will] have to do what they tell us, and we'll have a list of 9,000 or 10,000 of our finer inmates that will be ready for neighborhood visitations throughout California." (More gems: “I'm sure the people in L.A. would like to see more prisoners out on the streets."

And, classic false equivalents of the mysterious “some people” with federal judges: "Some are saying there are too many people being let loose, and then we have the judges saying, not enough, we need another 10,000 out there.")

Seems like Brown doesn’t remember how Realignment (AB 109) works. I covered its nuts and bolts in a past article, noting that AB 109 neither transfers nor orders early release of any inmates. Instead, inmates will complete their sentences in state prisons and trickle into county post-release community supervision services. Since October 1, 2012, all new offenders who are “non-violent, non-serious, and non-sexual” become the counties’ responsibility.

It also seems like Brown has not read the court’s April 12 decision. Instead, he reported that he told his lawyers to “take a good look at this stuff.” If he had read that “stuff”, he would get a summary of the legal saga to date, including the US District Court judges’ close consideration of Realignment’s impact on California public safety:

“[In 2009] this Court gave ‘substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.’ In fact, we devoted 10 days out of the 14-day trial to the issue of public safety; we also devoted approximately 25% of our Opinion – 49 out of 184 pages – to it. We concluded that the evidence clearly established that ‘the state could comply with our population reduction order without a significant adverse impact upon public safety or the criminal justice system’s operation.’” (Emphasis mine.)


The Federal court was prescient. The Center on Juvenile and Criminal Justice (CJCJ) released a report in January 2013 showing that although state crime rates rose in large cities this year, there was no “relationship between the implementation of Realignment and increases in violent or property crime”

Analyzing the first set of crime data available since Realignment went into effect in October 2012, the report notes that each of the 58 counties has taken on responsibility for varying numbers of new felony offenders. Counties that relied heavily on sending individuals to state prison (such as San Bernardino and Fresno) then had to take on more offenders relative to others (such as Sacramento and Alameda), which already had robust local sentencing options. However, crime increased less in “high-realignment” counties than it did in “low-realignment” ones.

Brown underestimates Californians’ intelligence by telling them he will have to flood the streets with his “finest inmates” in order to de-crowd the state prisons. There are good ways to reduce prison populations that will save the state money and improve people’s lives. They include changing harsh drug sentencing laws, changing and eliminating mandatory minimum sentencing, and increasing compassionate release policies such as early parole for elderly and ill prisoners, a population that is growing exponentially. Alternative sentencing practices that counties employ under Realignment include Community service, restorative justice programs, furlough programs, house arrest, work release, and substance abuse treatment.

Health care in prisons is the other pink—no, magenta—elephant in the room, especially after Brown’s early April declaration that prison health care should no longer be under federal control. In yet another decision, judges disagreed, saying that the California Department of Corrections and Rehabilitation, has not resolved Eight Amendment violations.

I’ve written before on how the costs of prison health care will skyrocket as the prison population grows older, and this point is even more relevant than ever. (For more information on this topic, see this excellent Human Rights Watch Report.)

Deliberate indifference to the health of inmates in California’s prisons is viciously routine. I detailed this phenomenon in my previous article and countless advocates have pointed it out. In one statement, he gave correctional employees the aegis of responsibility for prisoners’ Eight Amendment rights and justified a health care system that falls just short of cruel and unusual punishment. “[The] constitutional standard [for health care in prisons] is deliberate indifference, and as far as I know there is no one deliberately indifferent to the health needs of California prisoners.” In reality, even the most conscientious employees of CDCR are forced to be negligent—budget priorities and CDCR’s paltry physical space and manpower just don’t allow for adequate care.

If Brown gets his wish and goes back before the Supreme Court, he will deserve the legal whupping that the Court is likely to give him yet again.