A classic game theory thought experiment is the problem of the prisoner’s dilemma. You separate two accomplices and give each the option of turning on each other in order to get a reduced sentence. In the end they always do and both lose. In the California version of this game it is the prisoners that go free and the public that loses.
In early August, a three-judge panel of the U.S. 9th Circuit Court of Appeals ordered California to reduce its prison population by 40,000 inmates in the next two years. This is the largest federally mandated state prison reduction order ever forced over the objection of state officials. This blatant usurpation of states’ rights is not only unconstitutional, but dangerous to the public safety of Californians.
The release order arose out of two lawsuits alleging that prison overcrowding was resulting in an overburdened health care system and the resulting poor care was a violation of prisoners’ constitutional rights. However, the Prison Litigation Reform Act, which was enacted by Congress in 1996 as a means to protect states from frivolous prisoner lawsuits, made any federal release order, including population reduction, a “remedy of last resort.” Regardless, the court decided that health care reform had not been properly addressed—therefore a mandatory release order was the last resort. Yet the original act was never intended to have such broad interpretation to allow it to be used in such a way.
The federal order not only demands the release of mass numbers of prisoners, it also recommends policy in which to “safely” do so. Policy such as “good time credits” which would release prisoners early based on credit obtained by participating in rehabilitative, education, or work programs. Other recommendations included shortening the length and limiting the use of parole, and reducing the arrest of technical parole violators. The federal court ignored the fact that similar recommendations and improvements have already been made within the state.
The California Senate and Assembly in the last few weeks have been scrambling to produce a plan that would decrease prison population in the time granted to them. Amidst fierce debate, the bodies have not produced reform that would adhere to the mandate and still keep Californians safe. Rather, Gov. Arnold Schwarzenegger recently asked the federal courts to delay the order and plans to file an appeal with the U.S. Supreme Court. If this fails, a dangerous precedent of the federal court dictating states’ public safety laws will be set.
Across the country, Michigan is facing the potential closing of eight prisons and has declared seven jail overcrowding emergencies—will the federal court demand the early release of thousands of prisoners there as well? Ohio’s prisons are at 132 percent capacity, will the state have control over the fate of their corrections system? Effective policy is needed, but whose? The answer is explicit in the Tenth Amendment of the Constitution, which puts the power in the state’s hands. But when a bully feels the power of victory once, they often search for others to attack on the playground.
Speaking of playgrounds, the early release of 40,000 inmates means their return to almost every local community. The federal three-judge court believes that public safety will not be threatened because of the requirements, collection of good credits, that must be fulfilled before early release, and because the parole system will take on a “gradual increase” of cases to maintain accountability. But if California’s correction system is failing to even provide basic healthcare services why should the public trust that their “good credit” program will work?
The mass release of inmates will also strain an already overburden parole/probation system. The court’s answer: that the effect will be “mitigated by the gradual release of prisoners” into the parole program. How is the release of 40,000 prisoners in two years, gradual? According to the California Department of Corrections and Rehabilitation, over half of those released on parole returned to prison for reoffending in 2008. An increase to the parole population of 32 percent over two years will not keep crime rates stagnant, and will certainly not reduce them.
The classic game theory, prisoner’s dilemma, is designed to persuade players to make decisions that fail to produce the best possible outcome. If the federal court’s order is unsuccessfully challenged, a precedent will be set—and the game redesigned. Prison overcrowding in California has reached an impasse and new avenues must be pursued, but federal judges ordering the mass release of inmates from state prisons, tramples on the right of states to establish their own public safety laws and must be challenged by California in front of the U.S. Supreme Court.
Courtney O’Brien is the Legislative Assistant for the Public Safety and Elections Task Force at the American Legislative Exchange Council.Posted - Copyright © 2022 Eastern Group Publications, Inc.