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Friday, May 30, 2014

The Flawed NRC Report: No Mention of Realignment!

(This is Part 5 in my criticism of the recent National Research Council report on incarceration. Here are Part 1,  Part 2Part 3, and Part 4.) 

In my previous post, I pointed out that the NRC report overlooked the centrality of prosecutors to prison growth, and thus ignored the importance of counties. In my next few posts, I will expand on the signficance of this oversight. But in the meantime, I wanted to write a short post to highlight just how badly the NRC over-emphasizes national and state factors over county-level ones.

At no point--nowhere, not a single time--does the report discuss Realignment in California.

It talks briefly about Plata v Brown, the Supreme Court case that upheld the 9th Circuit's decree that California's prison system was constitutionally deficient. It talks briefly about the fact that following Plata the state has been releasing numerous prisoners. But that's it.

I searched the entire pdf for the word "realignment" and got nothing relevant. To be careful, I then checked every time the word "California" appeared. Nothing.

For those not up on California penal policy, Realignment is potentially one of the biggest penal policy changes in recent history. In my next post, I will discuss in more detail how a potentially major cause of prison growth is that sending an inmate to prison is basically "free" to a DA: as a county official, the DA doesn't care about the cost incurred by the state for the defendants he sends to prison. In fact, the problem is even worse: since jail and probation are county expenses, the DA likely prefers to send them to prison, since he looks tougher and pays less.

Realignment is California's effort to directly confront this moral hazard problem. Simplifying greatly, under Realignment, counties are required to detain "triple-nons" (non-violent, non-sexual, non-serious offenders), no matter how long the sentence. In other words, if a county DA wants to lock up a low-level offender, the county jail now has to pay for it.

Now, the details of how Realignment is playing out in practice are incredibly complex. But the fact that California has chosen to go this route to reduce its prison population indicates that the state with the largest state-level prison population feels that a major cause of prison growth is county-level budgetary moral hazard, and it has adopted a revolutionary process to try to correct it.

Yet in a twenty-five page chapter on the causes of prison growth, the NRC committee gives the moral hazard problem two sentences (almost in passing), and it never once talks about Realignment

This is a shocking oversight, and it indicates that the report truly does not provide a viable explanation of where prison growth is coming from, and thus that it is in no position to recommend how to regulate it.

Posted by John Pfaff on May 30, 2014 at 12:16 PM | Permalink


BDG: That's a fair question, and one I was debating with someone else the other day. Maybe a more nuanced way to put it is this: at the very least, county DAs will be *more* concerned with county finances than with state finances, or are *more likely* to care. They'll have more day-to-day interactions with other county officials, blame for, say, overcrowding problems will fall on people they associate more with, etc., etc.

My view on DAs actually came from a comment a colleague once made about elected judges in a particular state. These judges are elected at the county level, and my colleague heard that to avoid annoying the political machine in their home counties judges were generally inclined to favor prison over jail or probation. Now judicial elections may be different than prosecutorial ones in ways that make judges more sensitive to party concerns (which provide a direct link between various county institutions).

My sense, though, is that DAs in California counties are changing their behavior in response to the increased fiscal responsibility being placed on counties, and that they are trying as best they can to keep pushing inmates into the state system if possible. But that's just a rough sense I have.

Posted by: John Pfaff | May 30, 2014 5:44:07 PM

John, this has been an interesting series. To pick up on the fiscal angle, which is the only one I really understand, what's the basis for your suggestion that county DA's care about the county budget? Is there some assumption that somewhere the county must be doing things to align their incentives to care about its budget? If so, what are those things?

In other words (and I recognize this is peripheral to your main argument), why would "realignment" actually change county DA's incentives? It seems like the fiscal externality is similar no matter where the defendant serves his time.

Posted by: BDG | May 30, 2014 4:21:03 PM

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