What's Ahead for California's Prison Crisis?

Co-authored with Mark Ladov 

California is again at a crossroads in managing its over-bloated prison population. The decision in a case pending in the Ninth Circuit Court of Appeals could affect whether California becomes a success story in reforming its criminal justice system.

The Brennan Center for Justice, the Sentencing Project, the ACLU of Northern California and other groups have filed a friend-of-the-court brief in Valdivia v. Brown, arguing for the right to counsel in all instances where someone could be sent back to prison for a parole violation. But what's at stake is far more than just parole procedure: failure to provide right to counsel could directly contribute to a growth in California's prison system from increased parole revocations.

Last year, in Brown v. Plata, the U.S. Supreme Court ordered the state to reduce prison overcrowding to remedy constitutional violations of prisoners' rights. The state's legislature and Governor Brown have been busy trying to comply with that decision. To reduce the prison population without affecting public safety, the state enacted a "Realignment Plan" and considered several other measures, including making possession of drugs into a misdemeanor instead of a felony, reducing the state's use of pre-trial detention, and reforming the state's harsh "three-strikes-you're-out" law.

California's unnecessarily harsh parole revocation system is one huge contributor to the prison population explosion. In fact, the Court in Plata suggested that the state use alternatives to incarceration to respond to parole violations (instead of simply sending violators back to prison). A shocking 64 percent of California's new prison admissions are parolees returning to prison. That means a majority of people entering California prisons go there for parole violations -- not for new convictions. By contrast, in Texas -- a state hardly considered soft on law and order -- only 20 percent of new entrants to prison were for parole violations. Such violations can vary from missing a meeting, to failure to pay a fine, to testing positive on a drug test, to another arrest. Plata recognized that returning these individuals to prison when they pose no new threat to public safety provides us with little benefit at a great cost. It is no secret that our system of mass incarceration is breaking our nation's collective budget -- not just California's.

Even before the Supreme Court found California's overcrowded prisons unconstitutional in Plata, federal courts had already found the parole revocation system unconstitutional in 2002 in Valdivia. The Valdivia order required the state to give parolees an opportunity to hear the charges against them, and to defend themselves against allegations that could return them to prison. Critically, to ensure that these reforms worked effectively, California agreed to provide a lawyer to every parolee at risk of reincarceration. Among other things, the Valdivia order complied with a 1973 U.S. Supreme Court decision holding that parolees have a Constitutional a right to counsel to present reasonable defenses and avoid unlawful and unnecessary reincarcerations.

Providing access to counsel is necessary to provide access to justice -- and it is far more cost-effective than the alternative. California actually conceded in the case that providing all parolees with a lawyer was far more efficient than determining who was entitled to counsel on a case-by-case basis. Giving everyone a lawyer also sped up the process, to everyone's benefit; some parolees were waiting in jail for as long as 200 days just for a hearing to determine whether or not they should be let free. Such delays are a huge waste of limited state resources, and an unnecessary barrier for parolees who instead need help reentering their communities.

Unfortunately, these improvements to California's parole system -- and any subsequently decrease in its prison population -- are at risk of being rolled back. In 2008, California voters enacted Proposition 9, which would severely abridge the provision of counsel to parolees and increase the risk that parolees are wrongly or unnecessarily returned to prison. A group of parolees, along with the Brennan Center and other organizations dedicated to ending unnecessary incarceration, are now fighting in federal court for the continued right to counsel in all revocation hearings per the original Valdivia order.

Providing parolees with counsel will allow them to properly defend themselves against the violation charges and to protect themselves -- and the state budget -- from unnecessary reincarceration. The average annual cost for housing an inmate in California is currently over $45,000 per year. California's total cost of returning parolees to prison is over $1 billion per year. Bringing California's parole revocation procedures in line with the rest of the country could save the cash-strapped state $500 million -- half of this cost.

Perhaps ironically, California's self-defeating effort to deny counsel to parolees at risk of reincarceration comes as we approach the 50th anniversary of Gideon v. Wainwright. In that landmark 1963 decision, the Supreme Court recognized that every accused person in America should have a lawyer, to protect his or her rights and prevent unnecessary incarceration. Since Gideon our prison population has grown by over 600 percent.

In a nation that sends more people to prison than anywhere else in the world, the promise of Gideon is needed more than ever.

Mark Ladov is Counsel in the Justice Program and Inimai Chettiar is the Director of the Justice Program at the Brennan Center for Justice at NYU School of Law. The Justice Program focuses on improving our system of justice by ending unnecessary incarceration, securing full legal representation for the poor, and ensuring equal access to the courts while eradicating racial disparities.