When California's Supreme Court struck down major parts of the state's trend-setting "three strikes" law as unconstitutional yesterday, it hung a big question mark over the future of thousands of third-felony convicts sentenced under the law to a mandatory 25 years to life.
The ruling may also rekindle the debate on the future of America's penal system: whether we continue down the "lock-'em-up-and-throw-away-the-key" road or begin to explore alternatives. And economics, as much as law or compassion, will shape that choice.
Even before yesterday's surprise ruling -- which law-and-order forces will strive mightily to overturn -- a key question was already being raised in California and at least 17 other states: Should we build more giant state prisons to imprison all felons, regardless of the nature of their crime, or divert non-violent, less serious criminals to some form of "community punishment"?
The issue is particularly critical in California, which has more people locked up -- 156,000 -- than any other state. Republican Gov. Pete Wilson wants to build six more prisons, in addition to the state's current total of 32, in part to house the anticipated flood of "three-strikes" felons. He has proposed a $2 billion bond issue for this November's ballot to pay for them. While similar measures have sailed through in the past, this time some state legislators are balking. They want the plan to be cut in half and the money saved to be used to subsidize community correctional programs -- like military-style boot camps, drug and alcohol treatment plans, community service under strict supervision, and home confinement with electronic monitoring. Last year, Wilson vetoed similar community correction proposals.
Other states will be looking at the fate of the bond issue, which faces a filing deadline of next Thursday (June 27) to get on the November ballot. So far eight states -- Connecticut, Georgia, Massachusetts, Michigan, Minnesota, Oregon, New Jersey and South Carolina -- have built programs based on the community corrections approach, while 11 others have adopted some portion of the idea. In Oregon, where nine percent of the general fund now goes into prison building and operation and only eight percent into higher education, Democratic Gov. John Kitzhaber is stumping to expand local community corrections programs.
The key incentive behind community corrections isn't compassion but money. Prison construction and maintenance is swamping state budgets across the country. In 1979, there were 791 state prisons in the 50 states, according to the National Institute for Justice; by 1996, the figure had nearly doubled. Construction costs for maximum security prisons today average about $80,000 per bed while the average annual maintenance cost per inmate runs to $15,513. Many states spend an average of $22,000.
Nowhere are the costs of incarceration greater than in California, which this year will spend $3.8 billion on building and running prisons. The state predicts the total will be $5 billion by the year 2000. The bulge in prison costs is cutting deeply into other state programs, notably higher education. "We have created 10,000 new jobs in the prison system, and those jobs are financed by cutting 10,000 jobs out of the university and state college systems," says state Senator Bill Lockyer (D), who together with GOP assemblyman and former sheriff Richard Rainey is a leading legislative advocate of the shift to community corrections.
University of California law professor Franklin Zimring, author of
several books on criminal justice, believes the new interest in community corrections could ultimately reshape the justice system.
"We used to send drunk drivers to jail," he says. "No more. It used to be a crime to be a vagrant... Today we have decriminalized this status, calling it homelessness, and we urge private charity to meet the problem. Youthful truancy used to be classed as a crime; today we want other social systems to deal with school absence."
Dr. Barry Krisberg, head of the National Council on Crime and
Delinquency, is less sanguine. "The trouble with community corrections programs (like electronic monitoring) is that they haven't made a dent in prison numbers," he says. "Rather than reducing the incoming flood of convicts at prison gates, they just widen the net of official supervision over people."
If, as Krisberg suggests, local correction programs prove to be an
intermediate step to incarceration rather than an alternative, political support will dry up quickly. The impact of yesterday's "three-strikes" ruling on public opinion is yet to be seen. Before the ruling, prison experts in California feared that reform ideas were likely to be derailed by election year calls, by Gov. Wilson and others, for strong prisons and stiffer sentences for criminals. But it also may eventually signal a serious rethinking of California's -- and the rest of the nation's -- penal policy.
Mary Ellen Leary, a veteran reporter of California politics, writes for The Economist.
© Pacific News Service
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