Some Suggestions for Jerry Brown on the Prison Situation

By Anthony Gregory, The Independent Institute
May. 24, 2011

Conditions for California prisoners are so bad that the Supreme Court has ruled that the overcrowding amounts to unconstitutional “needless suffering and death” (it almost goes without saying that the conservative justices dissented). California is supposed to release 38,000 to 46,000 prisoners.

Unfortunately, Matthew Cate, head of California Corrections, indicates that the Brown administration intends to obey the order, but not by reducing the prison population. The LA Times reports:

Cate said the administration hopes to reduce the number of prison inmates without setting any criminals free.

“Our goal is to not release inmates at all,” he said, adding that much of the prisoner reduction in the governor's plan would come from sending parole violators and non-violent offenders to county jails instead of state prisons.

This shell game might follow the letter of the Court’s order, but it would seem that now would be a great time to reflect on the institution of prison in a slightly more fundamental way. Putting a bunch of offenders in county cages instead of state cages is hardly a real solution. And now is a great chance to save a ton of tax money on the whole corrections system, but this will require some boldness on the part of the Brown government.

Brown has proposed, even before the ruling, that non-violent drug offenders be kept in jails rather than prisons. But why not just release them outright? They have committed no violence against anyone’s person or property. They have not actually violated anyone’s rights. They do not belong in a cage in any free society, which the United States and California purport to be. If these thousands of offenders were not clogging up the jails, the overcrowding and financial problems would both be ameliorated to a degree.

There are other people who do not belong in prison or jail: Those who violate gun control laws, another victimless crime. Violators of prostitution laws should also be released. And many property criminals would probably be better dealt with through restitution, arbitration and mediation than incarceration.

Proposals like this seem radical, but a Supreme Court ruling is a perfect excuse for the governor to do something significant. Gutting the prison state and effectively wars on victimless crimes are consistent with civilized morality, but would also save billions every year.

Some will protest that Brown could simply not get away with this. There would be far too much opposition, especially from the political right. Well, how about a compromise? He can offer deep spending cuts, large reductions in pensions for state officials, and tax relief so as to outflank his conservative opposition. Brown is far from a libertarian, but he has an iconoclastic streak to him, and demonstrated surprising bursts of fiscal conservatism after the similarly ironic profligacy of the Reagan years. If he takes on the left’s special interests, perhaps he can have more political capital to do away with the right’s as well. The Supreme Court order is a great chance for Brown to emerge as the boldest and least establishment governor of California in many years--not too hard a task--if only he has the will and courage to do it.