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Sentencing Reform in California and Public Safety Steven Raphael Goldman School of Public Policy University of California, Berkeley [email protected] 600 Prison 0 200 Prison plus Jail 400 800 U.S. Prison and Jail Inmates per 100,000 Residents 1920 1940 1960 1980 Year 2000 2020 What determines a nation’s incarceration rate? • Rate of admission • Offending rate x Apprehension rate x Conviction rate x Prison admission rate • Time served • Front-end sentencing • Release policy Annual Prison Admissions per 100,000 5 5 Murder/manslaughter 4 Rape/Sexual assault 5 11 12 Robbery 4 Aggravated Assault 2 Other Violent 15 8 18 18 Burglary 16 Larceny/Fraud Motor Vehicle Theft 1 Other Property 1 26 3 4 9 Drugs 47 13 Other 32 15 Parole Violators 0 10 46 20 1984 30 40 2009 50 Expected Time Served by Offense in Years 9.2 Murder/manslaughter 5.1 Rape/Sexual assault 3.5 Robbery Aggravated Assault 2.2 Other Violent 2.3 14.3 8.1 5 3.1 3.6 1.6 2 1.3 1.3 1.9 1.5 1.1 1.4 1.9 1.8 1 2.1 .8 .5 Burglary Larceny/Fraud Motor Vehicle Theft Other Property Drugs Other Parole Violators 0 5 10 1984 15 2009 U.S. vs. Australia? 0 100 200 300 400 500 Prison Incarceration Rate in the U.S. and California 1980 1990 2000 Year California 2010 US 2020 50000 100000 150000 200000 Comparison of California Inmate Populations to the Design Capacity of State Institutions 1990 1995 2000 year Total Inmate Population Design Capacity of State Facilities 2005 2010 Inmates in State Facilities Summary of Prison Overcrowding Litigation in California • 1990: Coleman v. Brown • 2001: Plata V. Brown • 2006: Federal three-judge court established with authority over prison growth • 2009: Three-judge court orders state to immediately offer plan to reduce prison population to 137.5 percent of capacity. State appeals to the Supreme Court. • 2011: Supreme Court upholds the population limit order by the threejudge panel. Policy changes pushing towards lowering the prison population • 2009 • Performance incentives for counties to reduce probation revocation (Assembly Bill 678) • Introduction of non-revocable parole • 2011 • Corrections realignment • 2012 • California voters pass proposition 36 revising the scope of three-strikes • 2014 • California voted pass proposition 47 downgrading low level felonies to misdemeanors. Provisions of Assembly Bill 109 (California Realignment) • Non-sexual, non-violent, non-serious (triple nons) felons will serve terms in county jail rather than state prison. • Triple nons currently serving time are monitored post-release under the Post Release Community Supervision program administered by counties. Technical violation will result in short jail terms but not returns to state prison. • Nearly all parole revocations are now served in county jail with a maximum of 180 days. • Enables greater use of non-custodial alternatives for both pre-trial and convicted jail inmates (primarily electronic monitoring). Figure 4. Observed recidivism outcomes point towards lower recidivism rates 70% No Realignment Exposure Some Realignment Exposure All Realignment Exposure 60% One Year Recidivism Rate 50% Arrested 40% Arrested (Adjusted for RTC w/o arrest) 30% Convicted Return to Prison 20% 10% -24 -22 -20 -18 -16 -14 -12 -10 -8 -6 -4 0% -2 0 2 4 6 Realignment Month SOURCE: Authors’ calculations based on individual level administrative data provided by CDCR. 8 Provisions of proposition 47 • Passed by 60 percent of California voters • Reclassified various drug offenses from felonies or wobblers (crimes that can be charged as felonies or misdemeanors) to misdemeanors. • Requires misdemeanor sentencing for petty theft, receiving stolen property, and forgery/writing a bad check (offenses with amounts less than $950). 10000 12000 14000 8000 6000 4000 Arrests Prop 47 and Felony and Misdemeanor Drug Arrests -10 -5 0 5 Month Relative to November 2014 Felony Drug Arrests 10 Misdemeanor Drug Arrests 16000 14000 12000 10000 Drug Crime Arrests 18000 20000 Prop 47 and All Drug Arrests -10 -5 0 5 Month Relative to November 2014 10 6000 4000 2000 Arrests 8000 10000 Prop 47 and Felony and Misdemeanor Property Crime Arrests -10 -5 0 5 Month Relative to November 2014 Felony Property Arrests 10 Misdemeanor Property Arrests 10000 9000 8000 7000 Property Crime Arrests 11000 12000 Prop 47 and Total Property Crime Arrests -10 -5 0 5 Month Relative to November 2014 10 Effects on prison and jail population • Realignment: large decline in prison population with partial offsetting increase in jail populations. • Proposition 47: declines in both prison and jail populations. 170000 160000 150000 140000 130000 120000 -100 0 100 200 Week Relative to October 5, 2011 300 170000 160000 150000 140000 130000 120000 -100 0 100 200 Week Relative to October 5, 2011 300 170000 160000 150000 140000 130000 120000 -100 0 100 200 Week Relative to October 5, 2011 300 85000 80000 75000 70000 65000 60000 -150 -100 -50 0 Month Relative to October 2011 50 85000 80000 75000 70000 65000 60000 -150 -100 -50 0 Month Relative to October 2011 50 85000 80000 75000 70000 65000 60000 -150 -100 -50 0 Month Relative to October 2011 50 200000 210000 220000 230000 240000 250000 Total Inmates, 2009 through 2015 -40 -20 0 20 Month Relative to October 2011 40 60 0 100 200 300 400 500 Prison Incarceration Rate in the U.S. and California 1980 1990 2000 Year California 2010 US 2020 100 200 300 400 500 Prison Incarceration Rate in the U.S. and California 1980 1990 2000 Year California 2010 US 2020 California Males 2007 Non-California Males 0.101 Black 2010 0.096 2015 0.074 2007 0.026 Hispanic 2010 0.024 2015 0.022 2007 0.079 Black 2010 0.079 2015 0.072 2007 0.028 Hispanic 2010 0.031 2015 0.027 2007 0.012 2007 0.020 Other 2010 0.012 Other 2010 0.020 2015 0.010 2015 0.017 2007 0.016 2007 0.013 White 2010 0.015 White 2010 0.014 2015 0.014 2015 0.013 0 .02 .04 .06 .08 .1 Proportion Incarcerated 0 .02 .04 .06 .08 Proportion Incarcerated California Females 2007 Non-California Females 0.011 Black 2010 0.009 2015 0.010 2007 0.004 Hispanic 2010 0.003 2015 0.002 2007 0.002 Other 2010 0.001 2015 0.001 2007 0.004 White 2010 0.003 2015 0.002 0 .005 .01 Proportion Incarcerated 2007 0.008 Black 2010 0.007 2015 0.005 2007 0.003 Hispanic 2010 0.003 2015 0.003 2007 0.003 Other 2010 0.003 2015 0.003 2007 0.003 White 2010 0.003 2015 0.003 0 .002 .004 .006 .008 Proportion Incarcerated Comparison of Arrest Rates Pre-Post Prop 47 By Race/Ethnicity Black Arrests per 100,000 Twelve months prior 884 Twelve months following Change 840 -44 Black Booked Arrests per 100,000 672 610 -62 White Arrests per 100,000 278 266 -12 White Booked Arrests per 100,000 202 179 -23 Hispanic Arrests per 100,000 355 337 -18 Hispanic Booked Arrests per 100,000 253 233 -20 Avenues through which decarceration in California may impact crime rates (and factors that may mitigate these effects) • Incapacitation • General deterrence • Rehabilitation/specific deterrence, hardening/criminogenic influence • Diminishing crime-fighting returns to scale Incarceration rate equals 2015 level Last Pre-Realignment Year 400 600 800 1000 1200 Violent Crime Trends 1980 1990 2000 Year 2010 2020 Incarceration rate equals 2015 level Last Pre-Realignment Year 2000 3000 4000 5000 6000 7000 Property Crime Trends 1980 1990 2000 Year 2010 2020 Figure 9: Violent Crime Rate Trends in California and Synthetic California, with Synthetic Comparison Group and Weighted Identified by Matching on Violent Crime Rates for Each Year Between 2000 and 2010 700 Violent Crime Rate 600 500 400 California 300 Comparison States 200 100 0 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 Year Figure 10: Property Crime Rate Trends in California and Synthetic California, with Synthetic Comparison Group and Weighted Identified by Matching on Violent Crime Rates for Each Year Between 2000 and 2010 4,000 3,500 Violent Crime Rate 3,000 2,500 2,000 California 1,500 Comparison States 1,000 500 0 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 Year Preferred estimates of the effect of a realignment-induced one-unit change in prison incarceration rates on part I crime rates And proposition 47? What explains small effects on crime? • Change in offending propensity • Diminishing returns to incarceration • Criminogenic heterogeneity among those who criminally offend • Expansion of the use of prison along the extensive margin • Net less serious offenders for less serious offenses • Expansion of the use of prison along the intensive margin • More likely to incarcerate offenders beyond the age of desistance Evidence from other setting of diminishing marginal returns • Italy’s collective clemency • Dutch sentencing enhancement • Heterogeneity in prison-crime effect estimates at different points in time for the U.S. The 2006 Italian Collective Clemency Bill • Passed on July 1, 2006 • Reduced sentences of inmates convicted of certain felony offenses prior to May 2, 2006 by three years. • Led to the immediate release of one-third of the prison population on August 1, 2006. • Ineligible inmates include those convicted of offenses involving organized crime, sexual assault, terrorism, kidnapping, and exploiting a prostitute. • No post-released supervision. • Pardoned inmates who re-offend have their residual sentence tagged on to any new sentence for offenses occurring within five years. Scatter plot of monthly incarceration rates against month measured relative to August 2006 Estimated Annual Crime Effects per Prison Year Served Per Inmate Impact on Annual Crimes Reported to the Police 50 46.8 45 40 36.8 35 29.8 30 24.7 25 20 17.9 15 10 5 0 Crime effect using time series break Crime effect, 6 months Crime effect, 12 months Crime effect , 18 months Crime effect, 24 months Estimates of the Annual Effects of a Pardoned Inmate on Province Level Crime Totals 40 Per Inmate Impact on Annual Crimes Reprted to the Police 36 35 30 25 20 15 15 10 4 5 0 Crime effect, all provinces pooled Crime effect, below-median incarceration provinces Crime effect, above-median incarceration provinces Incarceration Rate or Annual Incapacitation Estimate Estimated Impact of a Pardoned Inmate on Local Crime by Key Percentiles of the Per-Pardon Incarceration Rate 250 191.9 200 160.1 150 Incarceration Rate 100.1 100 Annual Incapacitation Effect 58.9 50 32.5 32.6 27.6 19.9 8.6 2.6 0 10th 25th 50th 75th 90th Percentile of the Cross-Province Distribution of Pre-Pardon Incarceration Rates Analysis of Habitual Offender Sentence Enhancement in Holland 2001 (Study by Ben Vollard in the Economic Journal, 2012) • The Dutch pass a sentence enhancement in 2001 targeted at offenders with 10 or more prior felony offenses. • Increases sentence for theft from two months to two years. • Limited initially to 10 largest cities, but later (2004) expanded nationwide. • Ability to apply the sentence limited through a centralized rationing process of available prison space. • Resulted in cross-area differences in the extent to which localities were able to apply the sentence enhancement to their population of usual suspects. • Based on police records, Vollard estimates that there were roughly three to four thousands offenders whose criminal history made them eligible for the sentence enhancement. • Dutch incarceration rate at the time low by U.S. standards (124 per 100,000) Relationship between recorded offenses in years preceding the policy change among those receiving the sentence enhancement and the proportion of eligible offenders sentenced under the new law Annual Number of Offenses on Offence History 8 6 4 2 0 0 0.1 0.2 0.3 Incapacitation Ratio 0.4 0.5 Vollard results • Large average annual incapacitation effects on the order of 50 to 60 offenses prevented per year served. • Moving from the 25th to the 75th percentile of the incapacitation ratio results in a 25 percent reduction in the incapacitation effect. Time period 1977 through 1988 1989 through 1999 2000 through 2010 Average prison incarceration rate Joint incapacitation/deterren ce effect per prison year served 171 349 449 9.93 1.246 2.21 Estimates from Raphael, Steven and Michael Stoll (2013), Why are So Many Americans in Prison?, Russell Sage Foundation Press, New York, NY. Concluding thoughts • Much more room for selective incapacitation, especially in the United States where the incarceration rate is so high. Many states have incarceration rates that exceed that of California (whether measured before or after this slate of reforms). • While a sizable share of U.S. prison growth is attributable to changes in drug sentencing policy (roughly one-fifth) the lion’s share in state prisons is attributable to longer sentences for violent offenders (roughly one half of growth). • Many violent offenders are often thought to be low-risk of recidivism. Creates tension between utilitarian and just-desert objectives of corrections.