How can cash-strapped California comply with Supreme Court ruling on prisons?

As California struggles to close its budget gap, officials and analysts are worried the state won’t be able to find the money to finance measures to comply with the US Supreme Court order this week to downsize the state’s prison population by 33,000 inmates.

As the state’s chief executive, Gov. Jerry Brown is taking the lead on California’s response to the Supreme Court ruling that the overcrowding in state prisons violated the Eighth Amendment ban on cruel and unusual punishment. The 5-to-4 decision upheld a 2009 ruling by a three-judge panel in California ordering the state to reduce its prison population to 110,000, or 137 percent of capacity.

Anticipating such a ruling, Governor Brown last month signed a measure (AB 109) that would shift thousands of low-level offenders to county jails and other community-based programs and facilities. But the shifts are contingent on voter approval of a constitutional amendment that would pay for moving the prisoners by hiking income, sales, and vehicle taxes.

Brown must file a report in two weeks advising the three-judge panel that originally ruled in the case whether the state has obtained necessary legislative approval for compliance, and file another report in 30 days setting forth the additional funds that counties may require from the state and what steps have been taken to implement a plan.

“Without the funding mechanism we can’t do it,” says Steve Whitmore, chief spokesman for the Los Angeles County Sheriff’s Department, one of scores of sheriff’s departments statewide that would be tapped for the transfers. He says L.A. County is still reeling from $128 million in budget cuts that have resulted in the closing of several prison facilities, leaving open about 5,000 empty beds because there is no staff.

Sheriff Lee Baca said publicly on May 23, the day of the Supreme Court ruling, that under Brown’s plan, more than a third of the state’s 33,000 prisoners would be relocated to L.A. County.

L.A. sheriff: Show me the money

“We may be the one county that can’t take that kind of influx,” he said on KCRW’s “To the Point” radio show. Currently, county jails hold about 14,000 inmates, down from a high of 22,000 a few years ago.

“It all boils down to how to pay the $27,000 annual cost of incarcerating a prisoner,” Sheriff Baca said. “I believe the governor knows this, and [the Department of Corrections] knows this, and we are working closely with them so we can get that money.”

Terry Thornton, spokeswoman for the California Department of Corrections and Rehabilitation, says other options are available that include electronic surveillance and home detention.

But California’s goal “is not to release inmates at all,” says state corrections secretary Matthew Cate, answering concerns from dissenting Supreme Court Justice Antonin Scalia who warned, “terrible things are sure to happen as a consequence of this outrageous order” and from (separately dissenting) Justice Samuel Alito, who added, “the court’s majority is gambling with the safety of the people of California.”

Brown’s realignment plan provides that nonviolent, non-serious and non-sex criminal offenders serve time in county jails instead of state prison. Joan Petersilla, a law professor at Stanford and co-director of the Stanford Criminal Justice Center in Palo Alto, says local agencies, if properly funded, can supervise and treat such criminals better than the state.

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“With this plan, California will have a less crowded prison system, which would go a long way toward meeting the concerns of federal judges,” Professor Petersilla wrote in an op-ed piece on SFGate.com. She notes that California spends nearly $9 billion on corrections annually – about $50,000 per prisoner, more than twice the national average – and that two-thirds of state prisoners are returned to prison within three years, nearly twice the national rate.

“Indeed, a silver lining in California’s budget crisis is that it created a consensus between factions in the 20-year debate over correctional practices in California – that we must both spend more wisely and promote rehabilitation to start closing that revolving prison door.”

Budget cutbacks in recent years have hurt jails at the local level. In 2004, the Los Angeles County Sheriff’s Department began the release of over 300 low-level criminals per day. While the offenders were nonviolent – drunken drivers, shoplifters, car thieves – the early releases stirred controversy over whether the savings in tax dollars was worth what many saw as a threat to public safety. So-called “quality-of-life” crimes began to soar.

“For misdemeanor offenders our system has come to a grinding halt,” Sheriff Baca said at the time. “With thousands being freed after having paid less than 10 percent of their sentence, there simply is no sense of deterrence whatever. This is no way to run a criminal-justice system.”

Brown appeals for public support

Governor Brown has already started making his appeal for public support to fund his measure. In a statement the day of the ruling he said, “We must now secure full and constitutionally guaranteed funding to put into effect all the realignment provisions contained in AB 109. As we work to carry out the court’s ruling, I will take all steps necessary to protect public safety.”

But some political observers say Brown’s approved realignment plan might meet with severe opposition because of the state’s economic troubles. Officials are still looking to trim $11.4 billion out of a $26.4 billion budget deficit for the current fiscal year.

The realignment plan “solves the immediate problem but passes it off to counties without funding to pick up the burden in jails, social services, or mental health,” says Barbara O’Connor, director emeritus of the Institute for the Study of Politics and Media at California State University, Sacramento.

She and other observers note that private prisons, particularly in other states, might relieve some of the burden, but they cost as well.

“[Former] Gov. Schwarzenegger tried this and met with much opposition from [law enforcement professionals] and others and that was when money was not as short as it is now,” Ms. O’Connor says. “This [ruling] is not a surprise. It has been coming, so the bill tried to anticipate it. It is still the worst time possible, fiscally.”