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Criminal Justice Conversations with David Onek: Stanford Law Professor Joan Petersilia

David Onek and Joan Petersilia
David Onek and Joan Petersilia

Criminal justice expert David Onek recently sat down with Stanford law professor Joan Petersilia to talk about California’s criminal justice realignment. Onek is a Senior Fellow at Berkeley Law School and a former San Francisco Police Commissioner; Petersilia is the former President of the American Society of Criminology and served as a special advisor to Governor Arnold Schwarzenegger. Here’s what they had to say.

DAVID ONEK: Joan, we’re going to talk today about California’s historic criminal justice realignment, the biggest change in criminal justice in California since I started working in this field 20 years ago. Can you provide some background about what realignment is and what it changes?

JOAN PETERSILIA: Well, I think as you state California realignment is the biggest change in sentencing and corrections that we’ve ever seen in our lifetimes and probably since the 1950s. Realignment basically the responsibility for convicted criminals. It takes a fair amount of the prison population, basically when it’s all done about a third of the prison population, and realigns them to county jails and county probation officers. So the realignment basically shifts the responsibility for a very large number of current prisoners back to the county and back to probation.

ONEK: And when people talk about those prisoners that are coming back to the counties the terms that’s often used is “non non non.” Can you explain what that means to people?

PETERSILIA: So the “non non non” means non-violent, non-serious and non-sex offenders. If you fall into those “non non non” categories you will no longer go to prison in the state of California. Jail will be the most severe sanction you face.

ONEK: Now counties have enormous discretion under realignment. The realignment funding from the state comes with no strings attached other than that it must be spent on this “non non non” population. How much of this money the county can spend on incarceration versus probation supervision versus community programs is left entirely to counties. What are the pros and cons of this approach?

PETERSILIA: I think that’s one of the most interesting things that we as citizens are going to face. Each county will have, as you mention, a pot of money, basically a check, which is based on the number of prisoners they sent to prison prior to 2011. So they get a check and in many instances it’s quite a large amount of money. There will be $1.2 billion spread across California’s 58 counties for the next two years. So counties get a check and they basically have wide discretion about who to spend it on, what programs to spend it on. They can expand jail capacity. They can just do bricks and mortars if they want. They can expand drug treatment, mental health court, treatment courts. They can hire new staff. They can expand probation officers. They can expand sheriff deputies.

So I think what makes realignment so interesting from our point is that it puts the onus back on the counties to make decisions about how they wish to punish their local convicted offenders. And we’re going to see 58 experiments and counties are going to basically interpret the “non non non” and some of them I think will continue to treat those people quite harshly. Others are going to see this as an opportunity to invest in treatment programs that they always felt would work better for this population.

ONEK: A lot of the focus on realignment has been on reducing the state prison population, but realignment is also going to lead to enormous changes in county jails.  One example: jails previously held sentence offenders for a maximum of one year and then just needed to focus on long-term rehabilitation programming. Now they may hold inmates for much longer periods of time and will need to develop this type of programming with relatively limited resources. Can you talk about this challenge and other challenges that sheriffs face in running their jails under realignment?

PETERSILIA: Well, it is going to be a huge impact on county jails. Currently in California 23 jail systems are already under order to not expand their prison population.  But now they’re going to be getting tens of thousands of new prisoners, let’s say in Los Angeles County, which is one of the counties that is, in fact, facing a court order already to expand prison capacity. Now they’ve got a huge population that can’t go back to prison. So how do you punish that population? If you want them to get taken off the street for incarceration and rehabilitation your only option is the jail. So we, in fact today, the Santa Barbara County reported that they sentenced a local man conviction of drug possession to 23 years in the county jail. Sacramento County has come out with extremely long sentences as well. So in that instance how do you handle a person that is facing a ten to 20-year sentence in a local jail, which was really designed for persons serving less than a year? So the jail is going to face not only overcrowding as you sentence more felons into jail than people who are pre-trial and lower risk and are going to come out the other end, but also the type of structure you’re going to need and the kinds of programs and the kind of security that you’re going to need when higher risk populations are serving longer terms in local custody.

ONEK: So how do you think counties should handle these dilemmas that you’re enumerating?

PETERSILIA: Well, the good side of realignment is that it’s going to face, every county is going to be faced with the decision, how much do they want to punish offenders who represent different risks? I think a rough guess is that we have over-incarcerated probably 15 to 20 percent in California, both at the jail and the prison. So I think that realignment will force us to stop being so harsh on very low level, first level offenders, who are annoying, they continue to come back in the system, but they don’t represent high risk. That’s the positive side of realignment. It’s going to force counties to pay for the punishment options they really want. And that’s going to force us to rethink harsh punishment for lower level of felons. It’s going to force counties to beef up, if they can, if they choose this direction, to beef up their treatment opportunities and their treatment services. I know many counties, particularly in Northern California, are using their funds to expand the contracts of programs that they have a lot of faith in. So day reporting centers are expanding across California. Specialty treatment courts, mental health courts, veterans courts, a lot those counties are using their realignment funds to expand those options. Housing, I think we’re going to see a little bit of housing expanded, although I think it’s the most difficult thing to expand. It’s the most expensive but it’s also kind of most important when you think about success for re-entry.

So I think we’re going to see counties going in very different directions. I think the sheriffs become a huge player. The sheriffs now, because of these orders, actually have the legal authority to release people. So for example that case I just spoke of, where you’ve sentenced the person in Santa Barbara to 23 years, that may or may not stick.  Because when that offender goes up to the county jail in Santa Barbara the Santa Barbara sheriff has to make the decision about whether or not he can stay, given his overcrowding situation.  So the sheriff has been a big winner in realignment. They will decide whether or not the sentences really can be in fact imposed given the local capacity and there will be pressure on the sheriffs to expand that capacity.

ONEK: That is the situation in the local jails. Let’s turn back to the state prisons for a minute where we’re going to have a situation that the “non non nons” leave the prison, a smaller group of more serious, hard core offenders will remain. What is that going to mean for our state prison system?

PETERSILIA: Well, you know, in fact that is the real promise to me of realignment. We should be reserving jail for the most serious. And that’s really what realignment does. It realigns everybody who doesn’t deserve prison out of prison, simply put. So what will be remaining is exactly what most people want prisons to be used for. They are expensive.  We know that they are probably not going to be getting many services. So we want to reserve that for the most dangerous. That is in fact what is going to happen. We are going to have a population in about five years of about 135,000 if projections are correct. So we will reduce our prison population from today’s population of about 160,000. We’ll bring it down about 30,000. But those that will be remaining will be much more hardcore. We will have more lengthy sentences.  They’ll be growing old in prison, which has implications for the cost.  It currently costs us about $53,000 a year per prisoner. That cost will go up. So we’re going to get a sicker, more elderly population on the one hand.  But it will probably also be in other ways a more dangerous population, gang-involved, much more serious violence potential. So we will see a hardening of the prison population and a lengthening of the time served there.

ONEK: And basically we will be imprisoning at the state level the people who need to be imprisoned at the state level and not imprisoning folks who would be better served at the local level in their communities.

PETERSILIA: Yes. And that was in fact the promise around realignment. That’s what sold it to the legislature. That we have over-incarcerated. It’s breaking the state budget.  So let’s get back to the original purposes of prison, which was to house the most dangerous people convicted in the state. And if realignment works, five years out that’s what we should have.

This is an excerpt from Episode 29 of The Criminal Justice Conversations with David Onek. The program features in-depth, thirty-minute interviews with a wide range of criminal justice leaders: law enforcement officials, policymakers, advocates, service providers, academics and others.


The Podcast gets behind the sound bites that far too often dominate the public dialogue about criminal justice, to have detailed, nuanced conversations about criminal justice policy.

Podcast host David Onek is a Senior Fellow at Berkeley Law School and a former Commissioner on the San Francisco Police Commission.

You can find more information on the Criminal Justice Conversations Podcast and listen to all past episodes on the Podcast web site.

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Nicole Jones joined KALW's Crosscurrents team in 2010 as a reporter covering criminal justice and public safety. Jones is an alum of the UC Berkeley Graduate School of Journalism and her work has appeared in The Chicago Tribune, Time's online edition and The Bay Citizen.