Prison Realignment Is a Charade
By WAYNE LUSVARDI
Gov. Jerry Brown’s prison realignment involves diverting lesser offenders to county jail instead of state prisons. But due to a history of bad choices by policy makers, not due to realignment per se, it will end up part of the existing revolving-door system of justice for lower-level crimes
That is what can be inferred from a description of how the criminal justice system in California works by Robert Pingel, a retired Los Angeles deputy city attorney.
The justice system works fairly well to punish those who commit major crimes by incarcerating them. But decades of poor prioritization of funding choices has ended up with a system that allows low level offenders to not only escape jail time, but also to avoid paying fines and penalties.
Suppose every so-called minor offender opted for jail time. Escaped fines and penalties then could result in more than a $500 million prospective loss to the court system that would have to be made up out of the state general fund.
According to Pingel, the criminal sentencing system for misdemeanor offenses has evolved over at least three decades to the point that offenders are serving only inconsequential jail time and realizing they can escape from paying mandatory minimum fines and penalties in what has ended up to be a revolving-door system of justice.
Each county sheriff is ending up the de facto judge, prosecutor, jailer and bailiff who has the final say as to actual jail time, fines, penalties and even the amount of bail needed to stay out of jail.
Brown’s plan of merely dumping lesser offenders on local governments offers more of a prospect of controlling costs, but is hindered by poor choices by state legislators over the last three decades.
Local governments cannot unwind the past bad funding decisions of state policy makers that funded a host of luxury government programs and services that now have crowded out of the state budget the funds necessary to deter misdemeanor crimes or punish offenders.
Misdemeanors are Not Always Minor Crimes
So-called minor misdemeanor offenses are not so minor. According to the Criminal Justice Statistics Center, for California in 2009, they include: driving under the influence (205,091 cases), assault and battery (91,932), petty theft (68,046) and vandalism (15,127), among a total of 970,221 misdemeanor crimes. Included as a misdemeanor crime is annoying or molesting a child under age 18.
There are also a number of felony offenses, known as “wobblers,” which can also be filed as misdemeanors. These crimes include Assault with a Deadly Weapon, Criminal Threats, Hit and Run resulting in personal physical injury, Driving Under the Influence resulting in personal physical injury, Grand Theft offenses, Recklessly evading arrest and all non-residential burglaries.
A minor offender typically has four options, if convicted:
How the System is Designed to Work
Actress Lindsay Lohan is an example. She served only four hours in the Los Angeles County Jail for a 30-day sentence for violating her probation for Driving Under the Influence (DUI) and Grand Theft offenses. But that was not a special deal given to a celebrity. Rather it is the new normal.
According to Pingel, the historical standard is that defendants serve two-thirds of their jail sentence. The one-third break is known as “good time, work time” credits. The system is designed so that you can’t buy your way out of receiving punishment. But nobody ever conceived that incarceration would become so trivial that it would lead to becoming the preferred choice sought by a growing number of minor offenders.
Any fines imposed could alternatively be converted to either jail time (or community service such as CalTrans) at the discretion of the court. The conversion formula for fines equals one day of jail or community service for every $30.00 in fines.
For example, a first time offender for Driving Under the Influence must pay a mandatory minimum fine of $390.00, plus penalty assessment, or serve 13 days in the county jail (or perform 13 days of community service). Thirteen days times $30 equals $390.
Penalty assessments equal 175 percent of the fine, but is not part of the jail time, community service formula. The actual monetary cost of a $390.00 fine would come to approximately $1,072.00 when penalty assessments are added.
How the System Evolved
Pingel explained how the revolving door justice system evolved:
“When I first began practicing in 1986, defendants actually served two-thirds of their jail time. Before conviction, if bail was set, a defendant actually had to post bail or remain in custody.
“This all started to unravel in the early-to-mid-1990s. Because of jail overcrowding, the sheriffs began releasing sentenced prisoners who had not completed two-thirds of their sentence. At first it was those who had served half of their time, then it slowly devolved to one-third of their sentence. Ultimately it has dropped down to the ridiculous level we see today. The Lindsay Lohan case is not an anomaly or the result of her being famous. The average criminals benefit from the same system.
“It used to drive us crazy when we would obtain a six-month sentence, and then later discover that the same defendant had been arrested three or four weeks later for another offense.”
No More Deterrence for Misdemeanors
Even worse, if you violate your probation and more jail time and fines are tacked on to your sentence, under realignment you can escape all that through the system of revolving-door jail time as well. There no longer is any effective system of deterrence for minor offenses other than the hassle factor of being summoned to court and serving a sham four-hour detention on one weekend on a thirty day sentence.
And if you report to jail and are only given four hours of detention, that time counts as your full jail time served, not as merely one day of jail time. For misdemeanor crimes, the current system may exonerate all jail time, fines and penalties; unless the county sheriff says otherwise, as will be explained below.
By comparison, in California a minor speeding ticket, an infraction, would probably cost about $350 and running a red light about $445 in minimum fines, plus all the extra fines now tacked on by local governments, which could amount to $1,000 or more.
If you are convicted of a battery on a person, or you vandalize property or steal a car, you can avoid all the fines and penalties by merely serving four hours’ jail detention. What is punishment for lesser offenses could be inconsequential jail time and potentially no monetary penalties.
The public has only recently become aware that the justice system for low-level offenses is what former Pingel calls a social “charade.”
The criminal benefits at the expense of the victims, the justice system and the taxpayer.
Taxpayers Taking a Hit
There is the hypothetical prospect of a loss of $378 million from the court system if all misdemeanor offenders opt out by accepting back-door sentencing by sheriffs. Even if 50 percent of fines and revenues go uncollected, that still is $189 million in lost revenues that must be robbed from other programs in the state’s general-fund budget.
There were 205,081 DUI offenses in California in 2009, according to the Criminal Justice Statistics Center. DUI offenders must pay about a $682 mandatory penalty in addition to the required $390 fine. But if all 205,000 DUI offenders were able to escape their penalties, that could result in a prospective additional loss of about $140 million from the state general fund.
All totaled, that’s a possible hemorrhage of over half a billion dollars — $518,000,000 — from a state budget that is reeling from declining revenues.
It is the county sheriff’s department that now determines how much actual jail time a low-level offender will serve. Sheriffs have a lot of latitude in meting out sentences. The sheriff’s sentencing structure is fluid and works on a sliding scale that often changes, depending on jail population. A sheriff has the final say, no matter what the court sentence or what some legislation may mandate for low-level crimes.
For example, according to a law passed by the Legislature, a third-time DUI offender (a misdemeanor) must be sentenced to a mandatory minimum of 120 days in the county jail. However, that law only deals with the sentencing. It has no effect on how many of those 120 days will actually be served. That decision is solely up to the sheriff. If the sheriff’s in-custody formula is one day for every 30, then that third-timer will only spend 4 days in jail. Whatever the sheriff’s formula is on any particular day will determine who stays in and who’s released.
But the sheriffs’ departments are not the bad guys in this system, and are only reacting to overcrowding.
Bail Is Part of the Game of Charades
There is a standard bail schedule for all crimes that law enforcement uses after making an arrest. Courts are not bound by this amount and are free to increase, reduce or eliminate the bail, depending on factors such as the seriousness of the crime, public safety, a defendant’s record and the likelihood that the amount will insure the defendant’s future appearance in court.
Rob Pingel explained how even the bail system has also become a game of charades:
“The mid 90s also brought a major change in the application of bail. Setting bail between $1,000 and $25,000 for most misdemeanor crimes will reasonably insure that the defendants do not miss their future court dates. However, because of overcrowding, the sheriffs began releasing prisoners whose bail did not rise to a certain level. They would unilaterally determine whose bail was high enough to keep in and whose wasn’t. If a spousal abuser or child molester’s bail was set at $20,000, it would not be uncommon for them to walk out the back door because the sheriffs decided the dividing point would be $25,000.
“This resulted in a cat-and-mouse game between the courts, the prosecutors and the sheriffs. Once it was known how much bail it would take to keep someone in custody, prosecutors began arguing for a sum that exceeded the cut-off. Over time, the courts began setting higher bails than they normally would have, knowing that anything less than $25,000 was the same as releasing someone on their own recognizance.
“The increase in imposed bail did nothing to solve the problem. The sheriffs quickly reacted by merely increasing the amount of bail which served as a cut-off” for someone being released.
Fiscal Extortion Led to Revolving-Door Justice
Democratic Party legislators have asserted that the only solution to the system that has evolved is more and more funding. But as Sacramento Bee columnist Dan Walters recently observed, it is a matter of choice.
California leaders and voters have chosen to fund such luxury public goods as: water bonds that have mostly gone for landscaping upscale communities, luxury-quality “affordable” housing, the economic “charade” of redevelopment, redundant and dead-end stem cell research, useless energy research funded by a “Public Interest Energy Research” surcharge on electricity bills, perchlorate regulation that has no public health benefits and expensive green power.
It isn’t Wall Street, Republicans, Prop. 13, the Three Strikes Law, the powerless Tea Party in California, or realignment that is the fault of the existing criminal justice system that has evolved in California.
County governments can’t unwind all the luxury state programs that are crowding out funding for dealing with low-level crimes. Gov. Jerry Brown made a start by undoing the “charade” of redevelopment that has robbed funding from public schools and local government services. But water, environmental and affordable housing programs are politically untouchable because they are seen as morally superior and create jobs that keep politicians in power.
Jail sentences, fines and penalties don’t buy a politician any political power, except in a high-profile crime case. But what good is government that continues to fund hyped luxury environmental, affordable housing and phony water projects but can’t protect the public?
How Long Can the Bureaucracy Be Sustained?
The costly bureaucratic apparatus of police, courts, district attorneys, public defenders, probation and jails is all being sustained to render inconsequential justice for misdemeanor crimes.
Imagine the staggering disproportionate costs involved in arresting someone for committing a misdemeanor, processing them, referring their case to the district attorney, court arraignment, arranging a court hearing with a prosecutor and public defender, and then bail and incarceration if convicted — all for an actual sentence served of a mere four hours of detention that may wipe out the offender’s obligation to pay fines and penalties as well. This amount of bureaucracy is no longer fiscally sustainable in such a revolving-door system of justice. It is a system that is going through the motions playing a game of charades that justice is being served.
As ridiculous as it sounds, it would almost be better if the local sheriff merely put alleged misdemeanor offenders in detention for four hours and fined them for an infraction. Many offenders wouldn’t pay the fines without knowing that a greater punishment, such as a 30- to 180-day sentence, was hanging over their heads. But offenders are gaming the system today and having their fines and penalties wiped out anyway. What is the justification for maintaining the huge bureaucratic mechanism for dealing with misdemeanor crimes if there is only a “charade” of justice being meted out?
How long before the public catches on that the “Lindsay Lohan” celebrity revolving door system of justice is not just for celebrities, but is how the criminal justice system now works for lower-level crimes? It is as if we are witnessing the breakdown of the moral and legal system in rural California so acutely described by Stanford and Cal State University Fresno Professor Victor Davis Hanson, only in the context of Blue coastal cities. But practically nobody is reporting on the “charade” of the justice system when it comes to misdemeanor crimes.
The criminals already know how to game the system. They don’t need an expensive Beverly Hills attorney to figure out how to show up at the county jail on a Friday night before the weekend starts to serve their sentence when the jail is filling up for the weekend.
If local governments are going to figure out how to devise less costly but more effective justice programs for lower-level offenders, they first are going to have to know how the system actually works in an environment of political realignment. Hopefully, the above description will serve as a modest step in that direction.
June 19, 2013