California’s Prison Break

Wall Street Journal, December 15, 2013

Judges who rewrite criminal justice policy vitiate the Constitution’s separation of powers, but they may also endanger public safety. Consider a federal court prisoner-release order in California, which a new study indicates has increased property crime.

In 2011 in Brown v. Plata, a 5-4 Supreme Court majority reaffirmed a lower-court mandate that California cut its prison population to 137.5% of “design capacity,” defined as one inmate per cell, which in effect required the state to remove 46,000 criminals. The High Court agreed that the state was providing an unconstitutional level of health care and that the only effective remedy was to remove prisoners.

Justice Antonin Scalia in his dissent called this “perhaps the most radical injunction issued by a court in our Nation’s history.” Judges, he noted, were not suited to make “very broad empirical predictions necessarily based in large part upon policy views” that are “regularly made by legislators and executive officials, but inappropriate for the Third Branch.” Also dissenting, Justice Samuel Alito warned that such “prisoner release orders present an inherent risk to the safety of the public.” Evidence now bears them out.

To comply with the court order, the state in October 2011 began sending nonviolent felons to county jails. Local jails have coped with the influx by releasing inmates early and placing more felons on probation and house arrest. As a result about 18,000 offenders are free who would otherwise be behind bars.

Researchers at the Public Policy Institute of California have analyzed the effects of this prison downsizing and found that property crime increased 7.6% in the year after the state began diverting inmates to local jails even as the rate fell 0.9% nationwide. Car thefts in the state rose 14.8%. This reverses a decade-long decline, which coincided with tougher sentencing policies.

The researchers found that the prison breakout had little impact on the rate of violent crime but “robust evidence” of its effect on property crime, estimating one or two more such crimes per year for each offender not incarcerated. {snip}



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