In an effort widely known as "realignment,” California has given its counties enormous new responsibilities for corrections—including authority over many new types of felony offenders and parolees. Rather than go to state prison, these offenders now go to county jail or receive an alternative sanction. In the first few months of realignment, California’s jail population increased noticeably—but many jails were already facing capacity concerns. We find that some offenders who would have been incarcerated prior to realignment are now either not locked up or are not spending as much time in jail. Going forward, counties will need to consider a wide variety of approaches for handling their capacity concerns and their expanded offender populations.
In May 2011, the U.S. Supreme Court upheld a 2009 federal three-judge court ruling ordering the California Department of Corrections and Rehabilitation (CDCR) to reduce its prison population to 137.5% of its design capacity—by about 33,000 prisoners at the time— within two years. To comply, California passed Assembly Bill (AB) 109, shifting significant responsibilities for corrections from the state to local government.
The legislation identifies a set of non-serious, non-violent, non-sexual criminal offenders who, rather than going to state prison, now go to county jail or receive an alternative sanction. Counties are also now responsible for managing lower-level offenders after they leave prison—previously these offenders were handled by the state parole system. Additionally, the legislation makes it more difficult to return parolees to prison for non-felonious parole violations—instead, the counties must handle them. Ultimately, the reform is projected to relocate about 30,000 lower-level felons from state prisons to county jails or to some form of community corrections.
Realignment appears to be putting pressure on already-challenged county jails. The legislation moved quickly from introduction to enactment and the prison population decreased rapidly.1 Between September and December 2011, it fell by nearly 12,800.2 However, because the state prison population was already in decline and is subject to seasonal fluctuations, realignment is not responsible for all of this decrease. A better estimate of the reduction in the prison population caused by realignment is around 11,100 felons (Table 1).3
During the same period, the average daily jail population (ADP) only increased slightly, by 359 inmates. However, before realignment began, the jail population had been in decline (Figure 1). Between September and December 2010, the ADP of California jails declined by about 3,650 inmates. When we compare that period to the initial months of realignment, it appears that realignment may have actually increased ADP by around 4,000 inmates.
But these changes in California’s ADP do not provide a complete picture of how counties are managing their inmates. A closer examination reveals that realignment has changed the composition of the jail population. As Figure 1 shows, the balance between sentenced inmates and those who are unsentenced—either awaiting trial or yet to be sentenced—is shifting.
In the first three months of realignment, the share of unsentenced inmates in California jails decreased considerably, from 70.7 percent in September 2011 to 65.2 percent in December 2011—a decrease of 5.5 percentage points. Taking into account changes over the same quarter in 2010, the share of unsentenced inmates appears to have dropped even more—by approximately 8.5 percentage points.
This change in the jail population was caused by both an increase in the number of sentenced felons of about 7,300 and a decrease in the number of unsentenced felons of approximately 3,300. The increase in sentenced felons tracks closely to the 7,174 offenders sentenced to jail under AB 109 during this time (CPOC Issue Brief, July 2012).
Note that the estimate of 7,738 newly sentenced offenders does not include parole or post-release community supervision violators. Instead, these violators are more likely to be counted among the unsentenced population. Since we are seeing a decrease in that population, it may well be that parole violators—who would previously have been sent back to prison—are now experiencing less time behind bars.
The currently available data do not provide specific details on how the shifts between the prison and jail populations were achieved.4 However, the data do show quite clearly that in the first three months of realignment, a gap emerged between the decrease of felons in state prison and the increase in offenders in county jails. We find that the average daily jail population in California increases by about one inmate for every three felons no longer housed in prison.5 This finding suggests that some inmates who would have been incarcerated prior to realignment are now either not locked up or are not spending as much time in jail.
To provide context for the new pressures realignment is putting on county jails, we examine how jails were faring in the year before realignment. At that time, there were on average 71,060 inmates incarcerated daily in California jails, or 159 people per 100,000 California residents (Table 2).
But counties vary widely in how much they use their jails. In the year before realignment, Sierra County housed the fewest number of jail inmates with a daily average of six, while Los Angeles—the state’s largest county—housed the greatest number of inmates, with a daily average of 14,585.6
Clearly, county population size accounts for many of these differences. However, county jails also differ in incarceration rates. For example, Sierra County’s 185 inmates per 100,000 residents is substantially higher than both the state average of 159 and Los Angeles’ 147. Marin County had the lowest rate, at 115, while Yuba’s rate of 546 was the highest (Table 3).7
This pre-realignment year also saw a wide range in the number of sentenced and non-sentenced inmates housed in county jails. For instance, in Trinity and Plumas Counties non-sentenced inmates made up a minority of the jail population, at 33.4 percent and 49.2 percent respectively (Figure 2). However, in all other counties non-sentenced inmates made up a majority of the jail population, with Yuba having the largest percentage of non-sentenced inmates at 88.5 percent.
There were also large differences in the percentage of inmates who were in jail for a felony offense (Figure 3). Less than half of the inmates were being held on felonies in Santa Cruz, Sierra, and Tehama Counties. San Francisco County had the highest share of felons in its jails, at 97.8 percent.
Many county jail systems already faced capacity problems when realignment began: 17 counties were operating under court orders limiting the number of inmates in their jails.8 Still, in the year before realignment, there were 75,987 rated beds in California jails—more than the average daily jail population of 71,060, suggesting that at least statewide there was sufficient capacity.9
However, monthly averages of the daily jail population may not be the best indicator of a county’s need for jail capacity because jail populations fluctuate both daily and seasonally. These fluctuations can mean that there are more inmates than beds. In the year before realignment, the highest one-day count of inmates was 78,204—that is, 2,217 more than the overall rated capacity.10
Yet while some counties face severe capacity constraints, others have excess capacity. In the year before realignment, Sierra County used the least amount of its jail capacity, on average, with a daily population of 41 percent of capacity (Figure 4). Imperial County was the farthest over capacity, on average, with a daily population of 159 percent of capacity. In all, 13 counties—including some of the biggest, such as Los Angeles, Orange, San Diego, and Sacramento—had average daily populations that were larger than the number of beds their jails were rated for.
Because of capacity constraints, a number of counties released both pre-trial and sentenced inmates early. For example, in the year before realignment Los Angeles reported monthly average releases of slightly more than 1,600 sentenced offenders and 300 inmates awaiting trial. San Bernardino County also released a substantial number of inmates—2,430—but these were all pre-trial inmates.
In fact, all but one of the counties under a court-ordered population cap—Sacramento—reported releasing some inmates early because of capacity constraints, and in 15 of these 17 counties these releases included sentenced inmates.11 Statewide, on average, 6,800 pre-trial inmates and 3,900 sentenced offenders were released early each month in the year before realignment.
Counties have a number of options for managing capacity constraints. One is to build more jail space—to that end, two pieces of legislation have been passed. In 2007, AB 900 created $1.2 billion in state matching funds for county jail expansions.12 As of May 2012, 18 counties had received conditional awards for a total planned gain of 9,222 jail beds (Table 4). However, not all counties operating at or above capacity received awards, nor is it likely that all the counties with funding will add enough jail beds to eliminate future overcrowding issues. In June of this year, SB 1022 made available to counties an additional $500 million in state funds (with a county match of 10%) for jail construction.
But counties will need to analyze closely the long-term benefits of building their way out of capacity problems. The costs of operating new facilities are substantial: construction costs account for less than 10 percent of the total cost of a jail over its lifetime.13
Yet another option is to release certain pretrial inmates who cannot make bail. Depending on the risk level of the inmate, possibilities include releasing an inmate on his own recognizance or releasing an inmate but maintaining supervision in various ways: check-ins, home and work visits, drug and alcohol testing, and/or GPS ankle bracelets. Reducing the bail schedule to lower the number of pretrial inmates is another alternative.
Counties can also implement alternatives to jail time, such as sentencing offenders to attend day reporting centers, substance abuse treatment, work release programs, or restorative justice programs. Home detention with electronic monitoring is also an option.
However, if practical solutions cannot be implemented, and with the threat of lawsuits asserting inadequate conditions and unconstitutionally inadequate health care, counties may continue to release inmates early.
California’s county jails faced serious capacity constraints even before realignment began—and in spite of a declining jail population. It now appears that realignment will add substantial pressures and force counties to make some difficult decisions.
Evidence from the first three months of realignment suggests that, as expected, counties are incarcerating the vast majority of newly sentenced felons. But inmates awaiting or on trial are less likely now than they were before realignment to be incarcerated—or they are being incarcerated for shorter periods of time. Parole or PRCS technical violators are also less likely to spend time behind bars—and may even spend no time at all. The effect of these changes on public safety in the state will be among the most consequential—and watched—outcomes of realignment.