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September 4, 2013

Addressing the
Federal Court Prison
Population Cap
L E G I S L A T I V E

A N A L Y S T ’ S

Presented to:
Senate Budget and Fiscal Review Committee
Hon. Mark Leno, Chair

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Status of Federal Court
Prison Population Cap Orders

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Federal Court Caps State Prison Population. In August
2009, a federal three-judge panel ordered the state to reduce
its prison population to 137.5 percent of its design capacity. This
order was designed to remedy what the court found to be an
unconstitutional level of inmate health care resulting from prison
overcrowding. The court’s ruling was upheld by the United States
Supreme Court in May 2011.
State Implements Realignment of Lower-Level Offenders. In
2011, the state enacted “realignment,” which shifted
responsibility for housing and supervising certain lower-level
offenders from the state to counties. Realignment was projected
to reduce the prison population by about 40,000 inmates upon
full implementation.
Court Orders State to Release Inmates. In May 2012, the
administration notified the federal court that the prison
population would not be down to the court-imposed cap. In June
2013, the court ordered the administration to take measures to
meet the population cap by December 31, 2013. These
measures include (1) expanding by 1,250 the number of inmates
housed in fire camps (which are not subject to the court’s
population cap), (2) maintaining about 3,600 contract beds
in out-of-state private prisons, and (3) releasing about 6,000
inmates early.

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Governor’s Plan to
Meet December 2013 Deadline

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Contracts for Additional Beds. To meet the prison population
cap without releasing inmates early, the Governor proposes to
expand capacity by 12,500 beds by December, primarily through
additional contract beds. This includes the (1) expansion of outof-state beds, (2) reactivation of two in-state private facilities, and
(3) lease of a private facility in California City to be staffed with
state employees.
Requests $315 Million Increase for 2013-14. The administration
requests $315 million to implement its plan in 2013-14. The
administration has not identified the plan’s cost for 2014-15.
Waives State Laws and Regulations. The Governor proposes
to waive all state laws and regulations related to entering into
new contracts for beds in non-state facilities.
Suspends Closure of California Rehabilitation Center
(CRC). The Governor proposes to suspend the deactivation of
CRC (Norco), which was scheduled to be closed in December
2016.
Includes Long-Term Plan. The administration proposes to
submit a plan to the Legislature by January 2015 related to
balanced solutions to address ongoing prison capacity problems.
Authority Expires January 2017. The provisions in the
Governor’s proposal expire January 1, 2017. According to the
administration, however, its current plan is only to enter into
these contracts through June 2015.

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Governor’s Plan Addresses Short-Term,
But Not Long-Term Problem

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Projected prison population
Inmates moved to contract bedsa
Prison population under Governor’s plan
Court ordered population limitb
Surplus/(deficit) of prison capacity

12/31/2013

6/30/2014

6/30/2015

6/30/2016

122,924
12,500
110,424
112,032
1,608

123,424
12,500
110,924
113,590
2,666

124,224
12,500
111,724
113,590
1,866

125,624
—
125,624
116,857
(8,767)

a Assumes state maintains 4,596 out-of-state contract beds currently included in 2013-14 budget.
b Assumes planned construction of additional in-fill capacity and that the California Rehabilitation Center in Norco will not be closed in 2015-16.

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Governor’s Plan Likely Results in Compliance in the ShortTerm…If successfully implemented, the Governor’s plan would
result in compliance with the court’s order to meet the population
cap by December 2013.
…But State Would Need Additional Solutions by 2015-16.
The administration’s plan to purchase additional bed capacity
only through 2014-15 would mean that the state is about
8,800 inmates above the court ordered limit in 2015-16.
Plan For Long-Term Solutions May Not Be Soon Enough.
The administration’s proposal to submit a plan for long-term
solutions in January 2015 would leave little time for the
Legislature to consider and implement any proposals before the
contracts proposed by the administration would expire after June
2015.

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Costs of Governor’s Plan Raise
Several Concerns

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Cost of Contracting Could Be Higher Than Estimated. The
Governor’s plan assumes that the state will be able to contract
for beds at rates similar to those it has negotiated in the past.
However, this is uncertain primarily because the administration is
only contracting for a short period of time—a factor that
generally increases contract costs.
Out-Year Costs Not Provided. The administration has not
provided the Legislature with the costs of the plan beyond the
first year. Based on our estimates, the cost of the plan in 2014-15
could be around $400 million.
Offsetting Savings Not Included in Cost Estimate. Because
the administration’s plan will involve moving thousands of
inmates out of the state’s 34 prisons, the cost to operate those
prisons should decline by tens of millions of dollars annually.
However, the administration’s proposal does not account for
these savings.
Unclear Whether All Funds Will Be Used for Requested
Purposes. The administration’s plan does not include a
mechanism to ensure that the requested funds will be used only
for the intended purposes, such as language that would revert
any unused funds to the General Fund. As such, the department
might be able to shift unexpended funds for other purposes
unrelated to the plan.
California City Correctional Center Is Extremely Costly.
The administration’s plan to lease the California City Correctional
Center and staff it with state employees is much more expensive
than simply contracting for the beds. We estimate that the
proposed approach for California City results in a cost-per-bed
that is about double the typical contract bed cost.

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Governor’s Plan Is Subject to Various Risks

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Early Releases Still Possible Despite Plan
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There are various logistical difficulties associated with
the administration’s plan to meet the court order by this
December, such as transferring a large number of inmates
and modifying in-state contract facilities to house highersecurity inmates.

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To the extent the administration is not able to move a
sufficient number of inmates into contract facilities by the
deadline, the court may order that the state release inmates
early. Similarly, if the inmate population is sufficiently higher
than currently projected, the state may be ordered to release
inmates early.

Plan Could Result in Unnecessary Expenditures
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To the extent that fewer contract beds have been occupied
than proposed (such as if the population is significantly lower
than expected), the state could be required to pay for
contract beds it no longer needs.

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To prevent such unnecessary expenditures, the Legislature
should direct the administration to negotiate contracts that
maximize the state’s ability to pay only for beds it actually
occupies.

State Could Be Held in Contempt
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The current court order requires the administration to consult
with the court prior to making significant modifications to the
population reduction plan.

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Because the administration has not sought court approval for
its plan to comply with the court order, it is possible that the
state could be held in contempt. This could result in the state
being fined by the federal court.

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Other Issues for Legislative Consideration

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Waiver of State Laws and Regulations Raises Questions
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The administration’s plan broadly waives any statutes or
regulations that would delay its implementation. While it is
likely that this is necessary to expedite the plan, the
administration has not indicated which laws and regulations
must be suspended.

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Thus, it is not clear how much control and oversight the
Legislature is ceding to the administration. To address this
concern, we recommend that the Legislature direct the
administration to cite the specific laws and regulations it is
proposing to waive.

Suspension of Closure of Prison Potentially Unnecessary
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The CRC in Norco is not scheduled to close until December
2016—three years after the court ordered deadline. It is
unclear why the administration is proposing to suspend its
closure now rather than waiting until it submits its plan for
long-term solutions.

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As such, the Legislature may not want to suspend the closure
of CRC now, especially since the facility is dilapidated and
expensive to run according to the administration.

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Key Aspects of the
Senate President Pro Tempore’s Plan

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Seeks Settlement With Plaintiffs’ Attorneys. The plan
proposes a three-year extension of the deadline to meet the
population cap—from December 31, 2013 to December 31,
2016. The plan also proposes a five-person panel to establish a
new population cap.
Establishes Grant Program to Incentivize Counties to
Reduce Prison Commitments. The plan proposes a program
modeled after SB 678, which incentivized counties to reduce
probation revocations to state prison. Funds would be awarded
to county Boards of Supervisors and could be used to support
local programs and practices demonstrated to reduce crime
(such as mental health and substance abuse treatment and
collaborative courts). Funds would be awarded in two phases:
(1) initial seed grants intended to help counties to develop
program capacity, and (2) annual ongoing incentive payments
tied to county performance, as measured by reduced
admissions to state prison.
Creates an Advisory Commission on Public Safety. The
plan proposes to establish a new commission made up of
18 members that would advise the Legislature and Governor
on strategies to stay within the population cap, including
sentencing changes and utilizing evidence-based programs.
Recommendations would be prepared for legislative
consideration in 2015.

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Plan Relies on Potential Settlement to
Achieve Short-Term Compliance

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Plan Would Not Meet Current Population Cap by Deadline.
As proposed, the Senate President Pro Tempore’s plan would
not meet the court-ordered population reduction by December. It
is also unlikely to achieve a large population reduction in 2013-14
because it would take several months to distribute seed grant
funds and for counties to ramp up program capacity.
Settlement Could Extend Deadline. However, the plan could
avoid violating the federal court order in the short term if the
plaintiffs and the administration were able to reach a settlement
that extended the deadline for meeting the population cap.

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Plan’s Ability to Achieve
Long-Term Compliance Is Unclear

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Success Depends on Various Factors
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Whether the Senate President Pro Tempore’s plan would
result in long-term compliance with the population cap is
subject to significant uncertainty and would depend on a
couple of key factors: (1) what, if any, modifications are made
to the current population cap and deadline as part of a
potential settlement agreement and (2) how many prison
admissions are avoided through the proposed local grant
program.

Long-Term Population Impacts Uncertain
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The degree to which the plan is able to reduce the prison
population is subject to significant uncertainty and could vary
significantly depending primarily on (1) the amount of the
grant provided to counties per avoided prison admission (the
size of the incentive) and (2) how counties invest the funding
(effectiveness of the program).

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In order to reach the level of the current population cap by
December 31, 2016, we estimate that the program would
need to result in approximately 7,000 avoided prison
admissions annually (or about one-fifth of total admissions)
beginning in 2014-15.

Plan Would Take Years to Achieve Its Full Impact
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The proposed grant program could take five years or longer
to achieve its full effect on the prison population when
accounting for the time for counties to ramp up program
capacity, as well as the current length of stay of inmates.

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Likely State Costs in Short Term,
But Potential for Savings in Long Term

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Hundreds of Millions of Dollars in Up-Front Costs for Seed
Money. The Senate President Pro Tempore’s plan proposes
providing seed money to counties totaling $200 million in
2013-14 and an additional $200 million in 2014-15. The plan
assumes annual expenditures of up to $300 million in incentive
payments for reduced prison admissions thereafter.
Expenditures Could Result in Offsetting Savings. To the
extent that the county grants achieve the intended goal of
reducing state prison admissions, the state would realize
reduced costs from incarcerating inmates and supervising
parolees.
Long-Term Net Effect Uncertain but Potential for Savings.
The long-term fiscal effects of the plan are unknown and would
depend on a couple of factors. The net effect would be savings
to the extent that the amount of the grant per reduced prison
admission is less than the full cost to house and supervise an
offender in state prison and parole for the full period under the
jurisdiction of the state. The higher the grant amount, the lower
the net savings. If the grant amount was greater than state
prison and parole costs, there would be net costs. Therefore, the
magnitude of net state savings or costs in the long term would
depend on (1) how many prison admissions were avoided and
(2) how much funding was provided to counties per avoided
prison admission.

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Plan Is Subject to Various Risks

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Unclear if Settlement Can Be Reached. If the administration
and the plaintiffs are unable to reach a settlement agreement
that extends the deadline to meet the population cap, the
Legislature would need to consider other options (such as
contracting out or early releases) to achieve short-term
compliance with the court order.
Plan May Not Achieve a Sufficient Population Reduction.
Even if the deadline is extended, it is possible that the plan may
not achieve a sufficient population reduction by the deadline.
The Legislature could mitigate this risk by implementing other
policies to reduce the prison population (such as sentencing
changes) or by developing a contingency plan if the deadline is
not met (such as contracting out or early releases).
Plan Currently Lacks Some Key Details. At this time, some
details of the plan still need to be developed, including:
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How much funding would be provided to counties per
reduced admission.

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How a baseline would be established for purposes of
measuring county performance in reducing prison
admissions.

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How the program would interact with the state’s preexisting
SB 678 grant program to incentivize reduced felony probation
revocations to state prison.

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Other Issues for Legislative Consideration

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Potential Impacts on Public Safety
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The Senate President Pro Tempore’s plan could have various
impacts on public safety. To the extent that more offenders
are supervised in the community rather than incarcerated in
state prison, there could be additional crimes committed. On
the other hand, to the extent that counties invest grant funds
to effectively implement programs that have been
demonstrated to reduce crime and recidivism, the proposed
grant program could have a significant positive impact on
public safety.

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The net effect on public safety would depend in large part on
which offenders are diverted from prison due to the program,
as well as how the local criminal justice system manages
these offenders.

Likely Increase in County Caseloads
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To the extent that counties act to reduce prison admissions
by diverting offenders to local supervision or incarceration, it
is likely that counties would see an increase in their jail and
probation supervision populations.

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The costs of any potential caseload increases would be
offset by state incentive grant funding.

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Legislature’s Approach Should Promote
Long-Term Compliance

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Short-Term Options Limited. There are now only a few months
until the December 2013 court-imposed deadline. Therefore,
options to bring the prison population to within 137.5 percent of
design capacity are generally limited to (1) additional contracting
for capacity, (2) implementing policies that would result in current
inmates being released earlier than under current law, or
(3) some combination of these.
Meeting Population Cap Not Sufficient to End Court
Oversight. Meeting the court-ordered population cap would not
release the state from federal oversight of its prison medical and
mental health programs. The federal courts continue to require
additional improvements in prison operations and facilities.
Plan Should Also Promote Long-Term Compliance With
Prison Cap. The federal courts are unlikely to consider ending
oversight of state prisons until they are convinced that the state
can maintain constitutional levels of medical and mental health
care in the prisons. This will likely include maintaining what it
believes are reasonable levels of prison overcrowding.
Greater Range of Options for Long-Term Compliance. There
are a number of options the Legislature could consider to help
the state achieve a durable reduction in prison crowding.
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Reduce Prison Admissions. This could include
(1) investing in programs that reduce crime or recidivism,
(2) incentivizing the more frequent use of alternatives to
prison, and (3) further limiting the circumstances in which an
offender is eligible to be sent to state prison.

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Reduce Length of Time in Prison. This might include
(1) reducing the length of sentences or enhancements,
(2) giving judges more flexibility in setting sentence length,
(3) expanding sentence credits for certain offenders, or
(4) expanding the use of furlough or alternative custody
programs for state inmates.

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Legislature’s Approach Should Promote
Long-Term Compliance
(Continued)

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Reduce Parolee Recidivism. This could include
(1) improving or expanding current rehabilitation programs,
(2) developing alternative sanctions for technical violations,
or (3) better matching of programs and parolees.

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Increase Use of Contract Beds. The state could expand
its use of longer-term contract facilities within and outside
California.

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Increase Permanent Prison Capacity. The Legislature
could approve additional prison construction in order to
increase the design capacity of the prison system.

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