Briefing Report: The Prison Overcrowding Crisis - AB 900 Three Years Later

Wednesday, March 17, 2010

Introduction

In the spring of 2007, the legislature passed, and Governor Schwarzenegger signed, Assembly Bill 900 (Ch. 7, Stats 2007.) The goal of the bill was to address prison overcrowding through a combination of new construction, infill and out-of-state facilities that would produce up to 40,000 state prison beds and up to 13,000 local jail beds. In order to finance this effort, AB 900 included $7.4 billion in lease-revenue bonds and a $300 million General Fund appropriation.

At the time, AB 900 was considered to be quite urgent. The Department of Corrections and Rehabilitation (CDCR) stated that it had inappropriate conditions for many inmates and was bogged down by lawsuits, the Governor had declared a state of emergency based on the overcrowded conditions, and the federal courts were considering the imposition of a prison population cap on state facilities. Despite this urgency, three years later the state has made little progress in the actual construction of any facilities. Most of the relief for the 15,000 “bad beds” that the Governor and department pointed to as the cause of the crisis has come from the placement of inmates in private, out-of-state facilities or from “early release” policies passed though the legislature.

In December 2009, CDCR crafted a new construction plan that attempts to integrate the needs of the federal receiver into their bed plan.  Due to a number of factors, this plan has significantly reduced the number of beds that would be available.  The revised plan projects that 19,763 state beds will be constructed at a cost of $6.2 billion (roughly half the original number of beds projected when AB 900 was approved).

Infill Bed Progress

The 16,000 infill beds authorized by the legislature were originally intended to address the “bad beds” cited by the Governor in his emergency declaration. These beds are located in insecure or inappropriate settings such as treatment space, hallways, or gymnasiums. The construction was initially envisioned as dormitory settings located at existing facilities and scheduled to begin as early as January 2008 and activated as early as January 2009. This original plan was created before the passage of AB 900 and was the basis for the estimates in AB 900. However, CDCR continued to revise the construction plan and, over time, has moved toward the construction of individual cells, program space, reception beds, and healthcare space instead of dormitories. This reduced the projected number of beds initially to 13,000 and then in a subsequent plan to 8,600.

CDCR has continued to revise their strategy and the current December 2009 plan projects the construction of 9,486 beds, including 7,590 in the first phase and 1,896 in the second phase.  Occupancy would take place between 2012 and 2014 depending upon the facility.

One of the most notable aspects of the new plan is that it includes 1,722 beds for a medical facility in Northern California at the existing Stockton complex. This marks the first time that the federal court-appointed Receiver in the Plata v. Schwarzenegger case and CDCR have created an integrated plan for the overall construction of beds. The project was originally part of the Receiver’s 10,000 bed, multi-facility plan and will serve inmates with severe medical and mental health issues as well as those individuals with long term care needs. According to CDCR the Stockton facility will be the only new stand alone healthcare facility that will be built with AB 900 funding. 

“Secure Community Reentry Facilities” and Jail Bed Progress

AB 900 contained roughly $2.6 billion for the construction of re-entry facilities and another $1.2 billion for jail construction. CDCR continues to believe that reentry facilities will be the “cornerstone of their effort to reduce recidivism” but they also acknowledge that they will now produce less than half the original estimated 16,000 beds due to the cost of their prototype reentry design. While they have made some progress in obtaining sites and are working with six counties (Kern, Madera, San Bernardino, San Diego, San Joaquin and San Luis Obispo), reentry facilities are not the panacea that was expected and have progressed very slowly. The state has not been able to negotiate locations in many of the urban areas where they would be most beneficial (in particular Los Angeles County which is the county of origin for over 33 percent of all inmates in the state correctional system).

On a positive note, CDCR has received approval to begin acquisition proceedings for county-owned reentry sites in Kern, Madera, and San Bernardino counties. In addition CDCR plans to request funding for both a new facility in San Luis Obispo and the renovation/repurposing of the Northern California Women’s Facility in San Joaquin County in spring of 2010.

The $1.2 billion in funding for jail constructions has also seen very little activity.  As of November 2009, 11 counties were conditionally awarded $617 million from the Phase I jail and reentry funds for a projected 5,489 county beds. The counties approved for funding are: San Bernardino, San Joaquin, Kern, Santa Barbara, San Diego, San Luis Obispo, Solano, Madera, Calaveras, Amador, and San Benito. Unfortunately, a number of technical issues have slowed this process down. One of the larger problems from a state perspective is the use of lease revenue bonds as the state funding source.

In the past, many local grants were either State General Fund appropriations or the proceeds of general obligation bonds. This allowed the state to go though a selection process, guarantee a county a grant, and immediately provide them funding. Lease revenue bonds, on the other hand, require that a facility be in construction or ready for construction before any bonds can be sold. They also require a significant amount of work up front before the Public Works Board will approve a project and the state can borrow money in anticipation of a bond sale. This essentially leaves local governments with only a conditional guarantee of receiving any state funding while simultaneously investing considerable local resources up front for the match as well as planning and acquisition costs.

Out-of-State Transfers

AB 900 authorized the involuntary transfer of inmates to out-of-state facilities as a short-term means of alleviating overcrowding until additional facilities could be constructed.  While CDCR required nearly 2 ½ years to complete their “immediate” overcrowding solution, they have successfully transferred the full 8,000 inmates that were projected to be placed out of state when AB 900 was signed by the Governor. As of March 2010, CDCR reported that 8,034 inmates were housed in private facilities located in Arizona, Mississippi, and Oklahoma at an estimated cost of $63 per day for each inmate.

While this authority is scheduled to sunset in July of 2011, CDCR is currently in the process of requesting an extension until 2014. This would allow CDCR to complete their spring population plan which includes the placement of an additional 2,336 inmates in out-of-state beds, bringing the total number of contracted beds to 10,468.

As with any expansion, the contract beds are not without controversy. Testimony at a recent Assembly hearing noted concern over the lack of a competitive bidding and procurement process by CDCR. Other entities have pointed out that the main contractor, Corrections Corporation of America (CCA), has seen the value of its contract increase nearly $23 million in 2006 to about $700 million three months ago – all without competitive bidding. Even in a state accustomed to high-dollar contracts, the 31-fold increase over three years is dramatic.

Medical and Mental Health Funding

One area where the state seems to have met some success is health care projects.  The state successfully built a new medical and mental health facility at San Quentin and is in the design or construction bidding phase for four additional projects in Lancaster, Vacaville, Corona, and San Luis Obispo.  Of the total $1.1 billion, approximately $381 million has been allocated to these projects.

Federal Court

In January of this year, the federal three-judge panel issued an order stating that no relief other than a “prison release order” would be capable of remedying the alleged constitutional inadequacies in California’s prison system.  As a result, the court issued an order that would require California to reduce its prison population to 137.5 percent of design capacity, in accord with a plan submitted by the state in Novermber last year. This would be a reduction of roughly 40,000 inmates (current design capacity of state owned adult institutions is 84,156 and there are approximately 152,000 inmates in state facilities.)  *Note that total prison population is 166,213 as there are 8,000 inmates in out-of-state beds and another 5,400 inmates in in-state community correctional centers, hospitals, or other programs.

As part of their January decision, the federal three-judge court stayed the population reduction order until the U.S. Supreme Court decides any appeal to the Supreme Court by the State. The exact timeframe for a U.S. Supreme Court decision is unknown, however it appears that the courts will decide in May if it will hear the State’s appeal of the January order. As a result, it is unlikely there will be any decision before sometime in 2011.

Where do we go from here?

It is difficult to point to any one aspect as the sole source of the slow progress in implementing AB 900. Instead, it is a culmination of many factors including poor planning, legal challenges, the inability to sell bonds in an economic downturn, and a seemingly unending and amorphous set of demands from the federal receiver.

It does not help that CDCR seems to have little direction and produces a new strategy plan on an annual basis. In the meantime, Democrats are pushing policies through the legislature – and supported by the Governor – that decrease the population through early release and place the burden of monitoring and controlling these individuals on local entities.  Sadly, these are the exact same policies and actions that AB 900 was supposed to prevent. While the administration, federal courts, and some members may claim these are sound and safe policies, we are only beginning to see their impact and it does not appear to be positive. 

As we move forward, the state should focus on changes that will expedite the construction of both state and local facilities. The most recent plan issued by CDCR appears promising, in that it attempts to create one integrated plan that includes both the department’s needs and those of the Receiver in the Plata case. Hopefully, in the future rather than continually amending their plan, CDCR will focus on building state prisons and local jail facilities.

 

For more information on this report or other Public Safety issues, contact Eric Csizmar, Senate Republican Office of Policy at 916/651-1501.