Tough on Crime (on the State's Dime): How Violent Crime Does Not Drive California Counties' Incarceration Rates - And Why it Should

California’s prisons are dangerously and unconstitutionally overcrowded; as a result of the Supreme Court’s recent decision in Plata v. Schwarzenegger, the state must act to reduce its prison population or face court-ordered prisoner releases. The state’s plans to reduce overcrowding are centered around what it calls criminal justice “realignment”, whereby California will send a portion of the state prison population to county facilities. The plan faces opposition from county officials, who see it as pushing the state’s problem on to the counties. But what if state prison overcrowding is really a county problem? I argue that state prison overcrowding is due in large part to county decisions about how to deal with crime. Using data from 2000-2009, I will show that California’s counties use state prison resources at dramatically different rates, and, moreover, that the counties which use state prisons the most have below-average crime rates. The contribution the Article makes, then, is twofold. First, it reinforces that incarceration in state prisons is one policy choice among many, not an inexorable reaction to violent crime. Counties can and do make different choices about how to respond to violent crime, including the extent to which they use prison. Second, the Article demonstrates why localities are crucial—and critically underexamined—contributors to state prison populations. Decisions are made at local levels about prosecution, investigation, plea bargaining, and sentencing, and these decisions are made by officials who are either elected locally (such as DA’s, judges, and sheriffs) or appointed locally (police and probation officers). Local policies and policymakers affect the state’s corrections budget, even though the state has no say in designing or implementing these policies. State officials * Acknowledgements. Dan Ho. Byrd Ball. SCJC Executive Sessions participants. Santa Clara. Oregon. Research Assistants: Vincent Ang, (Nik Warrior), Eugene Lee. Naomi Levy. Ian McAllister-Nevins. Tim Coxon. Bob Weisberg. Karthick Ramakrishnan. Debbie Mukamal. Joan Petersilia. 2 TOUGH ON CRIME (ON THE STATE’S DIME) DRAFT, 7/11 DRAFT—PLEASE DO NOT CITE WITHOUT PERMISSION must take these local differences into account, and create incentives for counties to behave differently. The problem is that it is difficult to distinguish between justifiable, crime-driven incarceration and optional, policy-driven incarceration. I propose a new metric for distinguishing between these two types of incarceration, one which defines justified incarceration in terms of violent crime. This would allow the state to manage local usage of state prison resources without either penalizing crime-ridden areas or rewarding prison-happy ones. This Article is the first of two articles dealing with the state/county prison relationship. While this Article quantifies the ways in which the extent of local prison admissions is not necessarily a function of the violent crime rate, a second Article will examine whether, given these differences, it makes sense for the state to subsidize county commitments to prison.