Better ways to end prison overcrowding than just releasing inmates

Last month, for the first time the United States Supreme Court ordered a state government to tackle America’s shameful prison overcrowding. Unless it builds new prisons – highly unlikely given its fiscal straits – California may be forced to release up to 33,000 prisoners by 2013.

This is good news. These people do not belong in prison. They are casualties of the war on drugs and measures like the state’s 1994 “three strikes” initiative, which have filled the state’s prisons with thousands of non-violent offenders at staggering financial and human cost. Many are struggling with mental illness.

California reflects the national pattern. The US contains 5 percent of the world’s population, yet houses a quarter of its prison inmates – well over 2 million people. Among all US states, California has the 17th highest incarceration rate with 616 per 100,000 adults in prison. This is higher than any other country in the world and more than five times the rate in communist China.

But before we start celebrating the high court’s prison decision in Brown v. Plata, we should ask: What kind of people will be released, and where will they go?

The great majority will be semi-functional older people, many of whom have lived in institutions for decades. Most will lack families who can care for them or community support systems. In this economy, they will probably be devoid of marketable skills. Most will not qualify for Social Security retirement or disability benefits. They will probably have no savings. And they will descend on California’s cities, many of which also face severe fiscal problems. Many of these ex-prisoners will probably be desperate.

Look what happened to mental hospitals

The instructive historical parallel is the de-institutionalization of America’s mental hospitals during the fiscal crises of the 1970s and 80s, following the development of psychotropic medications for treating symptoms of chronic mental illness. Thousands of people with schizophrenia and other mental illnesses who had been institutionalized for decades were released by the courts. They no longer met the standard for forcible incarceration: They were neither dangerous nor in need of custodial treatment.

But then, as now, courts were pushing against the open doors of fiscally strapped state legislatures. Politicians were happy to shut down wings of hospitals, and in some cases entire facilities.

What they did not do was pass the savings on to the fiscally strapped cities to cope with the new populations that descended on them. The result was that large numbers of people with mental illnesses and or who were socially fragile were discharged from hospitals but lacked appropriate psychiatric and social work follow-up. Many stopped taking their medications. Struggling with mental illness, living in poverty, frequently homeless, and without family support, they often engaged in socially unacceptable behavior.

Many became alcoholics, drug addicts, and sometimes criminals. Disappearing public psychiatric care meant that they often wound up in jails and prisons, contributing to the staggering numbers that prompted the Brown v. Plata litigation. Correctional facilities sometimes became the only places to house mentally disturbed people who acted out in public. The Los Angeles County Jail garnered the nickname “the largest public mental hospital in America.”

Released prisoners will stress cities and services

One predictable result of Brown v. Plata will be that similarly unfortunate people, lacking family support or other resources, will once again be dumped into America’s struggling cities. Many who do not start out in a state of desperation may be broken by challenges they cannot meet. Many will be driven back into crime. What will happen to this tidal wave of humanity?

It threatens to become a tsunami if prison-overcrowding lawsuits succeed in state after state in the wake of Brown v. Plata. The dispiriting truth about America’s fiscal federalism is that it is nobody’s job to care.

But necessity might become the mother of invention once California’s voters and politicians learn that released prisoners who are tracked back into the prison system will bring a real price tag with them. California, with one of the nation’s highest recidivism rates, is behind the curve. Nearly 58 percent of Californians released from prison are re-incarcerated within 3 years, compared with a national average of about 43 percent.

Time to find cheaper, human alternatives to prison

There are much cheaper and more humane alternatives to incarceration. Communities around the country have developed ways to reduce the antisocial behavior that so easily sends people back to prison. In 2002, Project Renewal, a New York City-based nonprofit, collaborated with New York’s mental health and parole supervision agencies to launch the Parole Support and Treatment Program.

The program helps transition ex-offenders with serious mental illnesses to community living by combining transitional housing, work with specially trained parole officers, and readily accessible services – including peer counselors who serve as positive role models.

One forthcoming study finds that participation in the program cuts the odds of re-arrest by 44 percent. It costs about $23,000 annually per participant, less than half the $52,000 annual price tag for incarcerating an adult in New York State prison and a fraction of the $240,000 per patient per year cost at Central New York Psychiatric Center. And for those who transition successfully, the cost to the state goes away entirely.

This is still a relatively small program. No one knows how scalable it – and programs like it – will be. But the Supreme Court’s decision means the time to find out has arrived.

Ian Shapiro is Sterling Professor of Political Science at Yale University, where he also serves as Henry R. Luce Director of the MacMillan Center for International and Area Studies. Stephen Wizner is the William O. Douglas Clinical Professor Emeritus of Law, professorial lecturer in law, and supervising attorney at Yale Law School.