Let’s Talk About Criminal Justice Reinvestment
By: Jake Whitaker
Tags: California, Criminal Justice Reform, Defundthepolice, Criminal Justice, Police Reform

This week, calls to “defund the police” began gaining traction as part of the larger protest movement against police brutality and systemic racism that erupted in the wake of George Floyd’s senseless murder on the streets of Minneapolis. Make no mistake, the media moguls at Fox News and Breitbart are having a simultaneous collective orgasm. This is exactly what they want: a catchy phrase that scares the bajeezus out of conservatives and people predisposed to value law and order above all else.

However, the core underlying concept is something that shows promising results. It is called “criminal justice reinvestment” in academic circles: the idea is that you divert funds away from enforcement activities and reinvest that money into new programs that focus on preventative and rehabilitative solutions that address the causes of criminal conduct. In order to counter the inevitable pearl-clutching and fear-mongering that hard-line law enforcement advocates will engage in, we need to provide a substantive argument that demonstrates why criminal justice reinvestment is necessary and how it will produce tangible positive results.

Over four and a half years, I studied California’s criminal justice system on a first-hand basis as a member of the Yolo County District Attorney’s Office. During my time working there, I was intimately involved with efforts to respond to California’s criminal justice realignment by developing and supporting alternatives to traditional prosecution. This experience gave me significant insight into the challenges of criminal justice reform.

California’s Criminal Justice Realignment

After decades of “tough on crime” policy being the guiding star of both the national Republican and Democratic parties, the issue of mass incarceration came to the forefront with an explosive Supreme Court decision in Brown v. Plata (2011) that declared the level of prison overpopulation in California to be unconstitutional. This single court ruling sparked two seminal acts of policymaking: the passage of Assembly Bill 109 (2011) and the successful ballot initiative Proposition 47 (2014).

Proposition 47 converted many felony offenses, such as drug and property crimes, to misdemeanor offenses with significantly lesser penalties. This act had significant ramifications for prosecutors, which struggled to adapt to realignment. After so many years of doing things one way, this radical shake-up forced a reckoning with the new landscape of criminal justice. This reform started the process of realigning our society’s treatment of drug addiction as a public health issue rather than a criminal issue. However, now we are stuck with a “half measure” in which prosecutors are still chiefly responsible for responding to and resolving drug addiction while the accessibility of local treatment programs vary from county to county. This new system is largely ineffective at addressing drug addiction.

A similar situation exists with AB109, legislation passed specifically to address the mass incarceration problem highlighted in Brown v. Plata, which shifts the incarceration burden for nonviolent offenders away from state prisons and requires local jails to pick up the tab. This has an unintended consequence of sparking a wave of infrastructure investment in local county jails, which burden taxpayers with massive, expensive projects while taking resources away from local governments that could otherwise be invested in preventative and rehabilitative programming that adheres to the broader long-term goals of criminal justice realignment. Groundbreaking for the $44M renovation of the Yolo County Jail began in June 2019, and this is one example that hits close to home for me. Although $36M of the construction cost is covered by a state grant, that $8M local investment is nothing to sneeze at when you can establish alternative programs that cost only a few hundred thousand a year each in staffing costs to implement and sustain.

Another issue with AB109 and Prop 47’s combined effect, which shifts the incarceration burden and allows for early releases of existing inmates in certain cases, is that we have a disastrously inconsistent approach to adult reentry programming. Yolo County, for example, has struggled to fund a substantive adult reentry program: I wrote grant applications to support this initiative and we were ultimately unsuccessful, but the necessity of obtaining grant funding was the central barrier that prevented us from implementing this type of programming. Many of the smaller and mid-sized counties haven’t been able to carve out funding in their budgets to support robust reentry practices, which means that the jurisdiction that an inmate is release into plays a definitive factor in that individual’s likelihood of recidivism.

The Proposition 47 Fund is intended to address these inconsistencies by creating routine competitive grant opportunities that focus on developing local rehabilitative programming. However, the types of programming that this grant will fund vary wildly — this is meant to allow for flexibility to adapt to local needs, but it ultimately creates a situation in which different realignment needs are prioritized differently by each jurisdiction which further exacerbates the state’s woefully inconsistent approach to criminal justice reform. It also creates a dependency on unguaranteed state funding to sustain critical pieces of each locality’s realignment infrastructure. Competitive grants are not meant to be sustainable funding sources, which creates liabilities for local governments when these grants expire.

The Diversion Conversion

A central component of California’s criminal justice realignment has been the emerging prevalence of “diversion programs.” These programs, often specialized in the scope of crimes and issues that they address, effectively serve as an “off ramp” for the traditional prosecutorial process. The central idea is that by engaging in and completing prescribed programming, individuals can have their criminal charges either dismissed or reduced depending on the specific program’s structure. This takes many forms, from programs that implement community-based restorative justice techniques to programs that emphasize mental health and/or drug addiction treatment.

Programs supported by the Proposition 47 Fund must contain one of, or a combination of, three elements: mental health treatment, drug addiction treatment, and/or criminal justice diversion opportunities. This state-level directive has been a driving force behind the growing popularity of diversion as the primary alternative to traditional criminal justice processes. Although these programs are often tremendously promising and have positive impacts on people’s lives, it’s important that we also understand the structural flaws of this reliance on diversion programs.

There are different forms of diversion programs at each stage of the criminal justice process:

Pre-arrest diversion: When a potential criminal arrest is deferred if an alternative means of addressing the issue is achieved.

When a potential criminal arrest is deferred if an alternative means of addressing the issue is achieved. Pre-filing diversion: After a case is received by the local prosecutor, but before a criminal complaint is filed with the court, the ability to participate in a diversion program is offered to the offender.

After a case is received by the local prosecutor, but before a criminal complaint is filed with the court, the ability to participate in a diversion program is offered to the offender. Pre-plea diversion: After a criminal complaint is filed with the court, but before either a plea agreement is entered or a trial commences.

After a criminal complaint is filed with the court, but before either a plea agreement is entered or a trial commences. Pre-conviction diversion: Known as a “Deferred Entry of Judgment,” the offender will enter into a guilty plea agreement with the understanding that completion of a program will either dismiss or reduce the charges.

However, like all other aspects of criminal justice realignment, local implementations are incredibly inconsistent. Local law enforcement agencies use different methods and combinations of these methods for diversion based on local comfort with the idea of diversion programming. Like many things in criminal justice, diversion is dependent on prosecutorial discretion. Some jurisdictions may opt not to engage in diversion activities at all because of a local prosecutor’s opposition to these alternative approaches.

The opposite is also true in some cases: the post-realignment infrastructure of Yolo County’s criminal justice system, for example, is incredibly reliant on diversion programs. But here is another significant drawback: in order to receive services, individuals have to already be involved in the criminal justice system and have an active criminal case. I recall one meeting that we held with police officers from each jurisdiction to discuss a proposal to create a homeless diversion program with Prop 47 funds, and one officer asked a very poignant clarifying question: “basically, you want us to go out and arrest homeless people so that you can get them into services?” From that moment onward, I realized that a sole reliance on diversion under-emphasizes the necessity of preventing criminal justice involvement in the first place.

Los Angeles County’s landmark Prop 47-funded program, which focuses on the homeless population, Diversion Outreach and Opportunities for Recovery (DOOR), does not require an active criminal case for individuals to engage in services offered by the program. It is a “homeless program with a diversion component (for those who need it),” rather than “a diversion program that focuses on homeless people.” This subtle yet key distinction has significant social and policy ramifications.

Criminal Justice Reinvestment: The Next Steps

Thinking about the Proposition 47 Fund in context, it is a form of criminal justice reinvestment. The state calculates cost savings from reduced prison incarceration rates and allocates that money to a competitive grant program. Although the core concept is sound, the implementation creates a messy and unsustainable situation.

It also takes the burden of reinvestment away from local agencies; instead of valuing rehabilitative programs as essential to the new landscape of criminal justice, these approaches are still widely seen as “boutique programs.” If you can get a grant to support it? Great! If the grant goes away? Too bad. The unintended result is a reliance on unstable funding sources; without sustained external funding, the program goes away because the individual agencies’ funding priorities still focus on retaining prosecutors and law enforcement officers despite the anticipated decline in workload created by a strong investment in alternative approaches.

Right now, the California Criminal Justice Realignment initiative is at a crossroads. After nearly a decade of experimentation, the state needs to begin shifting towards a more consistent funding strategy for local government programs while ensuring that the needs of the criminal justice involved population are met regardless of jurisdiction. This is where the long-term strategy of local criminal justice reinvestment comes into play.

In order for criminal justice reinvestment to succeed as a policy prescription, we need to hone in on the sustainability question. The Proposition 47 Fund is essentially a Silicon Valley-style “seed money” initiative to kick-start new programs and then transfer the funding burden to local governments. The problem with this approach is that many local governments aren’t generating a substantial enough increase in revenue from investing in alternatives to the criminal justice system to support the cost of these programs in the long-term. This situation is fundamentally unsustainable, and a failure to address this will be attributed as a failure of the realignment initiative as a whole.

In the context of increased scrutiny on law enforcement practices and demands for the de-escalation of emergency responses (which is basically what #DefundThePolice is when you strip away all of the scare tactics), it is also imperative that we begin expanding the criminal justice reform focus beyond diversion programming and embrace a model similar to what Los Angeles County is implementing on a wide-scale. Alternative approaches to criminal justice must balance the goals of prevention and rehabilitation. The core idea of criminal justice reform policy is that reducing recidivism rates is a necessary component of enhancing public safety. We must expand that idea to include the prevention of criminal justice involvement.

For smaller jurisdictions, the practicality of suddenly stripping funds from prosecutors and law enforcement agencies may be an insurmountable political obstacle. One potential solution is a gradual reduction in enforcement-focused positions through attrition, in which cost savings generated by reducing these positions are aggregated into local “Criminal Justice Reinvestment Funds” that become a sustainability mechanism for initiatives that are kick-started by grant funding. Reforms to the way that the Board of State and Community Corrections administers the Proposition 47 Fund to decrease barriers to obtain funding, combined with the mandate of creating local reinvestment funds, would go a long way towards solving the impending criminal justice reform sustainability crisis.

While programs like Mental Health Courts that allow for serious mentally ill offenders to go through an alternative track in the criminal justice system are undoubtedly important, these programs should be subsidiaries of a larger effort to decriminalize mental illness. This means creating categorical funding, available to all jurisdictions, to establish a “Mental Health Crisis Intervention Team” that serve as first responders for mental health episodes instead of police officers.

Similarly, the issue of drug addiction (highlighted earlier) also deserves significant consideration. There is no reason why possession of controlled substances for personal use should be penalized if treatment is accessible and accepted by the individual. Embracing reforms similar to those implemented in Portugal, which depenalized drug possession without decriminalizing it, would help address the flawed system created by Proposition 47. Instead of having police officers arrest drug addicts and throw them in the county jail for a day, why can’t we drop them off at a treatment navigation center instead?

For individuals subjected to incarceration, we need to create a dedicated funding source for adult reentry programming through a combination of targeted state and local reinvestment. Formerly incarcerated individuals face significant barriers to their successful reintegration into society; by supporting these individuals with robust rehabilitative programs, we can reduce recidivism rates and strengthen public safety.

Although some in the law enforcement community may wax poetic about the “good ol’ days” when prosecutors could try to compel people into drug court programs under the threat of state prison sentences, commit people involuntarily to state mental health hospitals, and prioritize incarceration as the only vehicle to promote public safety, the cumulative negative effect of this approach on millions of human lives is unquantifiable. Some posit that the political pendulum will eventually swing back towards a desire for law and order and that things will “go back to normal.” This line of thinking is fundamentally flawed. Criminal justice reform is the new normal. There is no “going back.” The murder of George Floyd has sparked a wide-spread public reckoning with the failures of our criminal justice system, and it is imperative that those in positions of power respond to and adapt to this new reality.