California choosing wrong way to solve overcrowding problem

California Gov. Arnold Schwarzenegger's plan, announced last week, to forcibly transfer California prisoners to private prisons in other states is a bad move.

Private prisons are troubling to begin with. More than 150 years ago, California took over San Quentin from a private operator because of a series of scandals over prisoner mistreatment and incompetent guards. Private prisons today too often correlate with low employment standards, poor staff training and inadequate inmate protections. Self-interested private profiteers are not answerable to the public and shouldn't be given the job of locking people up. What's next, contracting out the highway patrol and police?

Forced transfers are equally troubling. First, they're against the law. California requires that prisoners consent to out-of-state transfers. The courts sentenced convicted defendants to California prisons, not to Tennessee or Mississippi (two of the states where prisoners will be forced to go), far from their families and the community to which they'll eventually be paroled.

The law requires a prisoner's consent because people incarcerated out of state enter a legal twilight zone. They continue to be governed by California laws and rules, but they are thousands of miles from the California courts that can enforce those laws and from lawyers who can best advise them.

State officials say they can ignore the consent law because the governor has declared a state of emergency in the prisons. This is a dangerous precedent. The governor should not be allowed to choose which laws to follow. Besides, the laws about declaring emergencies are designed for the unexpected — an earthquake, for example — not a predictable crisis that has been growing for more than a decade and has been caused by mismanagement and governmental failure.

It's pathetic that the same elected officials who for years have failed to address prison overcrowding now want to outsource their failure. They know what steps are necessary to solve the overcrowding problem, but they lack the political will to act. The problem is that we incarcerate too many people, especially nonviolent offenders whose imprisonment doesn't add to public safety. New York has reduced its prison population by more than 10 percent since 1999 by concentrating on moving nonviolent offenders out of the system. California's refusal to take on that task means that even the cells freed up by forcing prisoners out of state will be quickly filled again.

There is a sensible way to reduce the prison population relatively quickly.

The prisons are flooded with parole violators — more than 60,000 a year — whose violations are minor. According to the state watchdog Little Hoover Commission, California's parole system greatly increases the chances that many will violate parole. Parolees are offered little or no help, and any mistake can result in a return to prison even if it doesn't involve criminal conduct or harm anyone. They don't stay in prison long, but each one takes up resources that could be better used.

One solution is a screening process, used in a number of other states, to determine which violators pose the greatest risk and need to be reincarcerated. Because the executive branch controls the parole system, the governor could immediately implement such a program. If it resulted in only a 10 percent reduction in the number returned to prison annually, it would empty more beds in one year than the proposed forced transfer of inmates.

In the long term, California legislators need to fix the state's jumble of criminal sentencing laws. Enacted over the past 30 years, these laws require too many nonviolent offenders to be imprisoned for too long. California could establish a sentencing commission to address this problem. In other states, including Virginia and North Carolina, sentencing commissions have led to smarter incarceration practices, a reduction in crime (because the most dangerous criminals are put away for the longest sentences) and billions of dollars in taxpayer savings.

Schwarzenegger supports the concept of a sentencing commission, but it isn't clear whether he wants a commission with real authority, which would be essential. A commission that could only make recommendations would be useless, given the lack of political will in Sacramento.

And the lack of political will is the real story here. Afraid of being labeled soft on crime, California's politicians in the Legislature and the governor's office have repeatedly failed to take real steps to reduce prison overcrowding, even though they know what must be done and why. The proposal to force prisoners to transfer out of state is just another way to avoid doing the right thing.

Steven Fama, a staff attorney for the Prison Law Office in San Rafael, Calif., represents inmates in cases involving prison conditions. He wrote this commentary for the Los Angeles Times.