Should California’s Crowded Prisons Look to San Francisco’s Shrinking Jails?

In the 1980s, San Francisco faced a court order similar to the one the state is facing now to reduce overcrowding. Rather than simply throwing the book at people, the city now often treats jail as a last resort and focuses on reintegrating ex-offenders back into society.

When Paul Henderson graduated from law school, he says, “Nobody clapped.” That’s because his family was wary of his goal of becoming a prosecutor. Henderson grew up in the San Francisco housing projects, where law enforcement was often seen as an adversary, and his career decision didn’t sit well with his mother, a public defender, or his grandmother, a community activist. But Henderson rejected the notion that as a black man from a poor neighborhood, he was destined to represent criminal defendants. In the world where he was raised, racial minorities were disproportionately charged with crime—but also disproportionately victims of it. He chose a career in the San Francisco District Attorney’s Office because he wanted victims and witnesses to be able to speak with someone who shared their background. But he also believed he could change the criminal justice system from within.

Henderson, who is 46, spent nearly 20 years as a prosecutor. Now he is deputy chief of staff and public safety director for San Francisco Mayor Ed Lee. But he remains an activist on criminal justice reform. And he is well versed in the challenges facing a state whose tough-on-crime approach hasn’t done much to improve public safety, best illustrated by the much-criticized “three strikes” laws. “People do bad things, and they absolutely should be arrested, and there absolutely should be justice,” says Henderson. “But what that justice can look like has to be a broader discussion than ‘more jail—end of discussion.’”

Early in his career, Henderson began urging prosecutors and law enforcement to start rethinking what, exactly, constitutes a victory for the forces of justice. Victory, he believed, should be more than just obtaining convictions. Victory should be helping to turn an offender into a productive member of society. So Henderson started working with a diverse cadre of officials from both sides of the criminal justice system: judges, prosecutors, probation officers and law enforcement on the one hand, and social workers, nonprofit advocates and public defenders on the other. They created an approach in San Francisco that focuses aggressively on reintegration of ex-offenders into society. The city now has a wide array of programs and policies that often see jail or prison as a last resort and instead push criminals toward housing, education, social services and drug rehabilitation.

Paul Henderson

It’s a strategy that is viewed by many with skepticism and even outright hostility. “I get a lot of flak—from my community, from prosecutors and from law enforcement,” Henderson says. “They think it’s liberal bullshit.” But Henderson believes that in the long run, rehabilitation costs less than imprisonment, and that his critics’ approach has done little other than create a state prison system so overcrowded that federal courts have determined it’s unconstitutionally cruel and unusual punishment. Henderson insists rehabilitation is the only approach that works if the city wants to both save money and actually reform criminal behavior.

“Where do you think these people go when they’re released?” Henderson says, recalling the diatribe he likes to deliver to critics who challenge him—often crime victims and their families. “Do you think they end up in Australia? Do they enroll in MIT and become professors on the East Coast? No. The average prison term is two to three years. They’ve been separated from all their friends and family, they don’t have a job, they were presumably uneducated and are still undereducated. And they’re coming back to the exact same community—your community—without a foundation and without the support because they’ve been gone. What do you think they’re going to do? It’s a disservice to act like we don’t know this process is going on and not intervene.”

If long prison sentences were a criminal deterrent, Henderson says, crime would have been nearly eliminated in California long ago, and repeat offenders would be almost nonexistent. That, of course, isn’t the case at all, and it’s why federal judges have ordered California to drastically reduce the number of inmates in state custody. The result has been a dramatic shift in corrections policy called “realignment.” The change came via legislation in 2011 that requires many criminals who previously would have served their sentences in state prison to instead serve them in county jails. Realignment has been painful for local leaders who are charged with huge new responsibilities as they work to prevent their own facilities from eventually confronting the same overcrowding as the state’s prisons. 

But it’s also caused many to turn to San Francisco to see if it’s found an approach to criminal justice that should be emulated across the state. That’s largely because in the wake of realignment, the population of San Francisco’s jail is actually declining. It’s the result of a longstanding approach to corrections that predates the state’s crisis. “San Francisco was ahead of the game before realignment ever began,” says Linda Penner, chair of the state’s Board of State and Community Corrections, which oversees county jails. “They had a community that embraced treatment. They had the capacity. And they had the political will. With realignment, they’ve just accelerated and stepped on the gas.”

California was ordered to reduce its prison population in 2009 as a result of poor health care that, according to one judge, caused an average of one inmate death a week due to medical neglect or malpractice. The U.S. Supreme Court has subsequently upheld that decision, requiring the state to cut its inmate population to around 110,000. That’s a monumental task: At its peak in 2006, the prison system had a population of more than 170,000.

A big part of the reduction, state lawmakers decided, could be achieved by shifting responsibility for housing some offenders known as “triple nons”—nonviolent, nonserious and non-sex offenders—from the state to the counties. Today, these prisoners can’t be sentenced to state prison or parole anymore; instead, they serve time in county jails and under the supervision of county probation officers. Since realignment became law, more than 100,000 offenders who would have been sent to state prison have come under county control, according to estimates last year by Joan Petersilia, one of California’s most respected criminologists.

While other states have shifted portions of their incarcerated population to the counties, two things made California’s approach unique. First, the speed at which the change happened is unheard of. “It’s historically the biggest shift in criminal justice done anywhere in the country in a very short period of time,” Penner says. Matt Cate, the former head of the state prison system who now leads the California State Association of Counties, says the whole plan was designed and implemented in about nine months.

Second, the state has provided funding to help the counties figure out how to handle the added responsibility—and has given them enormous flexibility in how to use it. Collectively, counties are getting around $1 billion annually to deal with their new responsibilities under realignment. If they wish, they can build new jails. Or they can focus more on services to prevent recidivism. Either way, in the coming years, there could be a slew of data to help policymakers figure out which strategies work best.

So far, statewide realignment has gotten mixed reviews. A December report from the Public Policy Institute of California found no evidence of change in violent crime rates in the state. But it found that under the first year of realignment, property crime—including motor vehicle theft, larceny and burglary—rose 7.6 percent. The increase was higher than in other states that had similar crime trends as California before realignment. And the spike came at a time when property crimes were decreasing nationally.

One point of agreement, however, is that the previous system was seriously broken. Kathy Jett, a former undersecretary of the state prison system, says bringing more prisoners to county supervision will ultimately be better for both prisoners and public safety. A big reason is that many of the state’s 33 adult prisons are in remote areas, isolating prisoners from family and community even though access to those things makes for a more stable transition to post-prison life. “We put them in Chuckawalla and nobody can get there,” says Jett, referring to a state prison in the remote southeast corner of the state that’s closer to Phoenix than to any major city in California. “That has an impact on the individual. They lose contact with their families, so their closest friends and buddies become their colleagues in prison.”

Moreover, she says, prisons generally have had very little funding or appetite for rehabilitation. Even when prisoners tried to be proactive and get an education, Jett says, they were often denied the opportunity. “It would be two days before they were going to test and graduate, and they’d be transferred to another prison with no program,” she recalls. “Because of the crowded nature everything was based on movement, need and capacity. There was no stability within an institution.”

The system was plagued by “churners”—people who served prison time, then violated their parole and made repeat visits. “They were completely segregated from the community,” Jett says. “There was no way to put them into a mom-and-pop drug treatment program and get them a job. By and large, they were much more comfortable being in prison than being in the community.”

Yet historically, some counties have been reluctant to push for a different approach. That’s no coincidence. In parts of the state, tough-on-crime political rhetoric plays well with voters. More important, counties had a financial incentive to embrace the old system. “It used to be state prison was a free lunch for the counties,” says James Austin, a prison consultant. If a county’s district attorney could get an offender sent to prison, then the state was on the hook for the cost of incarceration. But if the offender got sentenced only to jail or some sort of county-sponsored diversionary program, then the cost was local.

Jett became convinced that reforming the prison system itself wouldn’t happen because of its ingrained culture; she believes reforms will happen now that the counties are being forced to play a greater role. Other experts agree. “Everything we know from the most rigorous research suggests if you want to reduce recidivism rates, you have to address housing security, availability of jobs and social connections,” says Barry Krisberg, senior fellow at the University of California, Berkeley, School of Law. “The state was never able to do that.”

San Francisco had a head start in dealing with realignment, largely as a result of litigation in the 1980s that challenged overcrowding of its own jails. That prompted an increased focus on evidence-based practices in criminal justice, aimed at using statistics to determine which methods actually succeeded in reducing crime. The thinking was that the city could beat overcrowding, save money and actually increase public safety if it took an approach that was more nuanced than simply throwing the book at offenders. The result: Even in the wake of realignment, the city’s average daily jail population has declined from 1,954 in 2009 to 1,281 today, says Wendy Still, San Francisco’s chief adult probation officer.

Still represents, in many ways, San Francisco’s approach. When she discusses the population of offenders her office supervises, she refers to them as “clients.” It’s jarring, at first, to hear a probation officer describe convicted felons that way, but she says it makes sense. “We know they have needs,” Still says. “Yes, they’re offenders, but our job is to try to assist them.” In San Francisco, the prosecutors, public defenders and judges have all been trained on evidence-based approaches to justice that can help put them on the same page when it comes to sentencing. “We have a lot of cases that go to trial, and we fight over our cases in court,” says Jeff Adachi, San Francisco’s elected public defender. “But where we agree is once a person is convicted of a crime—particularly a person convicted of a low-level felony—the goal is to find the support and services necessary.”

San Francisco Public Defender Jeff Adachi: “Once a person is convicted of a crime, the goal is to find the support and services necessary.” AP/Jeff Chiu 

When it’s time for an inmate to leave prison or jail, San Francisco’s counselors find out what’s needed in housing, employment, health care and drug rehabilitation. The probation department has gone as far as picking people up from prisons to help them return to San Francisco. And little steps—like trying not to release people from county jail in the middle of the night when they’re more prone to slip up—have become part of the culture. “Other counties have taken realignment money and invested it in more jails,” Adachi says. “We haven’t done that.” Instead, San Francisco has focused on alternative sentencing and re-entry programs that hook offenders up with drug treatment, education and employment services.

Krisberg, the Berkeley fellow, says the Bay Area warrants attention from other parts of the state. “San Francisco is, in some ways, a road map for how to get organized and do it well,” he says. But he and others also acknowledge that the city has advantages that have aided its approach. San Francisco has benefited from its healthy financial position and tax base, which make experimental programs financially feasible. Its small geographic size makes it easy to get all the players together at the table to figure out solutions. The fact that it has a consolidated city and county government makes reforms happen more quickly, since multiple jurisdictions don’t have to work together. And its political leaders are almost universally in agreement on their support of the approach.

But not all counties are following San Francisco’s lead. “[P]eople are doing what they were doing before realignment,” Krisberg says. “The progressive counties are doing progressive things, and the crackdown places are continuing to get tough and crack down.” Indeed, county leaders elsewhere in the state say rehabilitation programs don’t reduce the short-term need for more space in their jails. But reform advocates say that’s a risky approach. “Some counties are making the same mistakes the state made, which was to try to build their way out of the problem,” says Don Specter, an attorney for inmates who sued the state over prison conditions. “It’s not going to get them anywhere. It’s just going to cost them a lot of money, and they’ll have several hundred more prisoners, and they’ll still have to release or not incarcerate people.”

Alameda County Sheriff Gregory Ahern, president of the state sheriffs’ association, says he’s a supporter of realignment. But, he notes, many of his members aren’t. They say that the state isn’t paying them enough to shoulder the extra responsibilities, and that many jails also lack the capacity to house the population assigned to them. Indeed, jails in about 37 of the state’s 58 counties have reached population caps imposed locally or by courts or other oversight bodies. The result is that, in some places, sheriffs release inmates early. Stephen Manley, a Superior Court judge in Santa Clara County, is supportive of realignment too. But he agrees that counties don’t all have the resources to adopt the re-entry programs, even with state aid, that have been proven to reduce recidivism. “We have over 150 people sitting in jail, right now, who’ve been released by judges to treatment, and they can’t get out of jail because there’s not treatment for them,” Manley says. “We don’t have enough alternatives.”

Meanwhile, some sheriffs argue that their jails lack the security features to handle more dangerous criminals who may spend years there as a result of realignment, nor do they have things like wood shops and machine shops that would be useful for helping longer-term prisoners learn vocations. Indeed, due to realignment, some offenders can wind up spending many years in county jail, even if their crime is a triple non. Those include drug offenders with “volume enhancements”—extra years for extra pounds of drugs—as well as people who have committed multiple crimes strung together, like a car thief who got a few years for each stolen vehicle. Ahern and county leaders are pushing the state for a three-year cap on the amount of time a prisoner can stay in county jails. “The state has given us their capacity problem,” Ahern says. “We’re working with them to deal with that.”

Still, counties acknowledge that even if the transition hasn’t gone perfectly, California had no other options, short of massive early releases, which counties didn’t want to see either. “We said we’ll take it and deal with it here at the local level,” says Cate of the state county association. “We’re trying to make the best of it.”

Krisberg believes the question of whether realignment is working is, in some ways, academic, especially when it comes to recidivism. He says that historically about 70 percent of state prisoners have ended up in state custody again within a few years of their release. “It couldn’t have gotten worse than that.”

*Photo courtesy of Paul Henderson

Communications manager for the Texas Medical Center Health Policy Institute