Realignment in Review: The collision course of political viability and economic sustainability

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(photo credit: Scott Hingst)

A cornerstone of AB 109 is the notion that the California criminal justice system must be driven by research, science and fact instead of emotion and when making decisions around prosecution, accountability and long-term public safety.

In a nutshell, if we are ever to reduce recidivism and victimization over the long haul, the California criminal justice system must avoid being an “offense based” decision-making model, meaning the suspect committed “X” offense so our response is “Y”. This is not to suggest that some crimes are simply so horrendous in nature that nothing short of long-term incarceration, or death, can realistically protect the public from that individual(s). I understand and embrace this thinking as well.

For the vast majority of criminal acts, decades of research has shown that criminal justice outcomes (i.e. does someone commit a crime again?) are markedly improved by utilizing a “risk-based” decision-making model. This type of model recognizes that all criminals who commit a same or similar offense are not similarly dangerous to the public. 

Central to this discussion is a need to recognize that the American criminal justice system is currently struggling to find new and more robust definitions of “accountability” and “public safety” that are both politically viable and economically sustainable. Some time ago I read or heard an analysis of this debate that suggested at its core, there are two basic groups of criminally active people in our society: those we are “mad at” and those we are “afraid of”. 

The public policy debate we are all now engaged in has to do with how we identify these diverse populations and what we subsequently do in response to criminal actions committed by those in each bucket. Seems to me, this rationale is at the root of the raging policy discussion around society’s response to drug and alcohol offenses and to those who commit criminal acts who are also mentally ill. Clearly we need to be more sophisticated in our response to crime than strict interpretation of the penal code allows.

The first step in shifting this paradigm is recognizing that current AB 109ers with Post Release Community Supervision (PRCS) status were chosen entirely through the old, offense-based model. Someone who stole once to provide for his/her family would be looked at the same as a habitual methamphetamine user who stole to support his/her addiction.

By this logic, the current “non-non-non” criteria has nothing to do with the risk for violent recidivism some of the career criminals in the diverted population represent to the public.  In my opinion, it is one of the most significant shortcomings of what is a long-overdue and (for the most part) sound piece of public policy. Those who have studied the decades-long history of social, political and criminal justice policy decisions that led to the horrific state of affairs in county jails and prisons all across our state understand why it was virtually impossible to take any other courses of action in this critically important aspect of AB 109’s development and subsequent roll out. 

Simply stated, if the State had used a risk-based decision-making model to identify the AB 109 population to be diverted to local control, they would not have reduced state prisons quickly enough to satisfy the Federal Court. Complicating the discussion further is the fact murderers and sex offenders would have been included amongst those diverted to local control, a reality that was seen as a political non-starter. 

So at the end of the day, some potentially very dangerous convicts who are blandly labeled as “non-non-non” (sounds harmless enough if the prior conviction history and risk is not also contemplated) are included with other convicts who may actually not represent a significant threat for violent behavior once under local control.    

As I, and others, have traveled around the State talking to the leadership of CDCR, District Attorneys, Police Chiefs, Sheriffs, Probation Chiefs and Judges, it is clear there is no shared consensus among these critically important stakeholders of the value of incorporating a risk and needs assessment into the decision-making protocol. Some are in favor of using it sometimes, some not at all. 

I think a fair description of the current state affairs in California is that the science around risk assessment is still mostly not embraced and/or factually understood to the extent needed by most of the decision-makers in our criminal justice system. Virtually all the stakeholders are either elected or are “at will” appointees of elected supervisors, thus complicating their capacity to openly address this very complicated public safety policy debate without appearing to be “soft” on crime. 

Having said that, I do also sense that there is a growing curiosity around the use and benefit of risk and need assessments all through the system. A fundamental obligation of public safety leaders is to understand and implement every possible resource that can be realistically expected to mitigate (as compared to eliminate) the risk violent crime represents to the general public. Risk assessment fits this definition well and that fact is beginning to resonate. 

In subsequent discussions we will offer some recommendations for training and education around risk assessment provide an example of the risk assessment currently in use by the State and make recommendations how a system wide use of this science could become a reality. 


Tom Hoffman

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