The elusive low level offenders; who are they? Where are they?
Down the rabbit hole again?
One of the four main components of the CDC talking points regarding the January budget proposals includes having all non-serious, non-violent and non-sex offenders that commit crimes serve their time locally. They estimate there are about 31,000 of these criminals that serve about one year in prison now. They indicate additional local capacity would be required with hints of AB 900 assistance. This Assembly Bill authorized $7.4 billion in bonds for jail construction and rehabilitation programs.
Four years after AB 900 was enacted only two jail expansion projects have been started and no prison beds have been added. The major additions associated with this Bill were the expansion of headquarters operations connected with the construction and rehabilitation planning. The executive staff structure grew quickly and watered down the operations of the department. Little can be shown for the time the programs were more operational; recently the rehabilitation functions were cut back drastically. The majority of the rehabilitation funds were spent on in-prison and aftercare drug treatment programs. Overall, inmates participating in these programs did worse when released than those who did not participate.
A consistent theme over the past few years has been to cull out the “low-level offenders” and have them managed in the community through, early release, local custody in lieu of prison, etc. The recent programs have had a variety of names; SATCU (Substance Abuse Treatment Control Unit), DTF (Drug Treatment Furlough), ESATCU (Enhanced Substance Abuse Treatment Control Unit), ICDTP (In Custody Drug Treatment Program), SAP (In Prison Substance Abuse Program), etc. All have shown very poor results, been plagued by problems, and cost taxpayers billions of dollars.
Optimistic projections of the number of inmate’s eligible and possible outcomes have always fallen short. For example, DTF was established on projections of 4-5,000 inmates each year. Contractors built up capacity, sometimes billing the department for empty beds, only to find at best there were 500 inmates available for the program. These programs were fraught with problems and eventually eliminated. Typically these special programs are looking for the elusive “low-level offender” and finding they are dealing with criminals who are not innocuous delinquents.
It would be wise for legislators and the administration to look to the past before overestimating and under-planning. Many ideas are developed by executives and academicians at the “30,000 foot level” (a term I heard as an executive in the department). If you keep your sights that high you will fall into a lot of holes; some of them too deep to get out of.
In a June 2005 report, researchers from RAND Corporation and Arizona State University found that a majority of those imprisoned before the drug treatment initiatives (Prop 36 in California and Prop 200 in Arizona) were approved were more serious criminal offenders than the “low-level” label implies. Prosecutors in both states opposed the initiatives, fearing they would reduce incentives for people accused of drug crimes to plea bargain. Researchers studied a sample from the more than 23,000 offenders sentenced to prison for low-level drug offenses during 1998 and 1999, the two years prior to the enactment of California’s sentencing reform.
Titled “Just Cause or Just Because: Prosecution and Plea-Bargaining Resulting in Prison Sentences on Low-Level Drug Charges in California and Arizona,” the report also examined drug sentencing trends that resulted from prosecution discretion such as plea-bargaining, and whether the Arizona’s reform initiative had any effect on these trends. Researchers examined prosecution files and interviewed court officials about the process between the arrest of low-level drug offenders, the occurrence of plea-bargaining and the eventual sentencing of these offenders.
Here are some highlights from the report:
- Prosecutors said they were less likely to drop the low-level drug charges for an offender with a violent or lengthy criminal history. Law enforcement officials argued that offenders eligible for drug treatment ended up in prison because they failed in their treatment attempts or choose prison in lieu of meeting the drug treatment requirements.
- “One of the most important findings in this study is that the low-level label is misleading,” said Jack Riley, the study’s lead author and associate director of the RAND Infrastructure, Safety, and Environment program. “These offenders typically either have serious criminal records or plea bargained down from more serious arrest charges.”
- “Many people backed these initiatives because they believed prisons were crowded with low-level offenders. However, we found that the people sent to prison on drug charges were not law-abiding citizens who simply made one mistake,” Riley added. “We cannot say, however, whether large numbers of low-level offenders may be in jails, as opposed to prisons.”
- Researchers said the prison sentences given to these low-level offenders are not as harsh as previously believed, since most were involved in a variety of serious criminal offenses.
It is unlikely there are enough “low-level offenders” eligible for this new yet to be designed program awaiting an acronym. A thorough review of inmate central files and arrest records will be one of the first problems that will reduce the number of inmates estimated to be eligible. Penal Code Sections 667.5 and 1192.7 already define violent and serious offences; more inmates will be found not eligible. In addition many counties will have problems coming up with the space for the prison cast offs. Some of the county capacity may not fit with the requirement that inmates return to their county they came from.
It might be advisable to consider expanding alternatives already being utilized by the prison system. Public and private Community Correctional Facilities have housed between 4,200 and 5,300 inmates since 2007. Based on the inmate distribution to each of the counties, they would need to be authorized to contract out with local private prison companies. One major advantage would be no upfront construction cost to local or state government. Those costs could be recouped by the company’s in the lease. Another option is to send more inmates out of state. Since 2007 California-out-of-state-Correctional Facilities increased the number of inmates they house from 200 to more than 10,000.
There are no innocuous miscreants in the prison system. Criminals earn their way into the prison system because they victimize the public, not because they make an error in judgment. Trying to force fit prison inmates into county level accommodations will through oversight or twist of fate inflict harm on the community. There will be more victims.