Over a decade ago, in May 2011, the US Supreme Court ordered California to release over 30,000 people from state correctional facilities as dangerously overcrowded facilities almost burst at the bars.
But 2011 was not the first time the federal apex court would caution the Golden State and its correctional system regarding prison population. In 2009, a three-judge federal panel had ordered the state to reduce the inmate population to 80,000 from 110,000. The court had given the state, the Department of Corrections and Rehabilitation, and other stakeholders two years to achieve this mandate.
However, the system failed – grossly. Instead of reducing, the inmate population continued to soar. Eventually, it ballooned to nearly 160,000 before shrinking and was around 140,000 inmates when the second court order arrived. If the first court order did not demonstrate a problem with how California handled incarceration, the second court order did. The state had to take steps to reduce a systemic dysfunction in criminal justice policies.
California’s incarceration problem is traceable to its criminal justice policies based on the vestigial War on Drugs, which President Nixon started in 1971. Then-Governor California Ronald Regan had also backed Nixon policies that disproportionately affected minority communities and put members of these communities in jail for drug crimes. When he became president in 1984, Reagan went hysteric with legislation. His policies fueled mass incarceration on a scale that dwarfed Nixon’s pruning. Regan laws led to millions of convictions across the country and the imprisonment of hundreds of thousands of California residents for the possession and use of marijuana.
Although California later made cannabis legal for medical use in 1996 and adult recreational use in 2016, the deed was done. Decades of biased law enforcement and criminal justice practices had caused state prison populations to spiral out of control.
The most significant step towards relieving mass incarceration in California was with the Public Safety Realignment Act, which Governor Jerry Brown signed into law in 2011.
The Act put counties in charge of non-violent offenders convicted of low-level crimes, e.g., recreational marijuana use and possession. California quickly saw the effect of this policy. Within a few years, the California correctional system recorded a 41% reduction in new incarcerations, and 28,300 inmates left state prisons. However, remember that the war on drugs remained active in California. So, despite the lofty ideals behind the Public Safety and Realignment Act, putting counties in charge of non-violent drug offenders created another problem. The state expenditure on monitoring and housing offenders only soared.
It was like taping a leak only to have another side of the tank burst open with fury.
The counties that had to monitor and hold the new class of inmates had to beef up their facilities. This need for security caused California to spend some $2.3 billion on corrections between 2011 and 2014. By 2016, the CDCR had a $10.1 billion annual expense sheet. Furthermore, extra-budgetary expenditure for the corrections system was about $1 billion annually – to help implement sentencing alternatives. Also, to handle the influx of state prisoners, the state had to cut a check of $2.2 billion to build new county jails. At the very least, this was some $5.5 billion that didn’t go to providing accessible healthcare, education, housing, jobs, and water for California residents.
Granted, California cannot just stop law enforcement and overhaul the criminal justice system.
Instead, the state needs to embrace restorative justice for both adult and juvenile offenders. Already, the California judiciary and counties have embraced restorative justice. Take the judiciary. The branch of government has a manual for balanced restorative justice for juveniles. But seeing as there are 35,000 juvenile offenders and 117,000 adult offenders across counties and state correctional facilities, the Golden State must extend a branch to adult offenders too.
Restorative justice takes an offender-victim-community approach to criminal justice rather than the traditional offender-legal system. The goal here is to first repair the damage caused by the crime. In this process, the victim and community members can get closure or compensation for the crime. Likewise, the offender understands how their actions affect others and their community. This has been shown to reduce recidivism.
Individuals affected by the experience spearhead restorative justice, but a mediator is involved in facilitating meetings and ensuring everyone involved gets equitable justice. In most restorative justice programs, the victim is given an active role. This helps to reduce feelings of anxiety and powerlessness. Community members also play designated roles to rebuild the community.
Many counties across California have equally embraced restorative justice through neighborhood court programs. For example, San Francisco started its neighborhood court (NHC) in 2012, Yolo county did the same in 2013. Other counties and cities have equally adopted the adult criminal diversion program on a need basis.
These programs have proven to be very successful. According to a 2018 state report, prisoners who went through the traditional criminal justice system between 2013 and 2015 had an average recidivism rate of about 46%. Conversely, offenders who participated in these Neighborhood Courts during the same period have an average recidivism rate of about 8%. To put it into perspective, nearly half of every 100 offenders charge and sentenced in a regular court, then sentenced and released from prison, end up back in jail within three years. On the other hand, only 8 in 100 offenders who go through restorative justice programs end up back in prison within three years.
Worse still, the report pointed out that individuals who went through traditional criminal justice are more likely to commit serious offenses on their rearrest than participants of the restorative justice program in Neighborhood Courts.
Evidently, this model of restorative justice is sustainable. Better still, it could potentially reduce California’s still-overpopulated prisons to manageable levels. Best of all, the cascading effect of this model means the state can divert much-needed funding to healthcare, education, and job creation.
However, this is not to tout restorative justice as a panacea for crime and justice in California. Restorative justice programs typically exclude offenders who commit felonies such as premeditated rape and murder. The traditional justice system is better suited to handle such offenders.
Nevertheless, the fact remains that there is a future for restorative justice programs in California. Neighborhood courts can help reform California criminal justice system if backed by broader legislation and policies. Thus, residents long disenfranchised of a second chance will have a fair chance to change their lives and be productive members of society.