People like to say that between 2009 and 2019, the state prison population “in the United States” dropped by ~10%, from 1.4M to 1.26M. And that’s technically correct–but as the figure below shows, it’s also sort of not. The prison population in the United States didn’t really fall. The prison population in California really fell, and everyone else sort of followed in its wake.

California was responsible for one-third of the national state prison decline over that time, as its population fell by ~50,000, vs. ~150,000 nationwide. And that actually undersells the impact of California on declines in punishment over that period, because it saw an even bigger drop in its number of “invisible” incarcerated people.¹

This did not happen by chance, or due to small tweaks. It happened because California, grudgingly and resentfully, adopted Assembly Bill 109, titled “2011 Realignment Legislation Addressing Public Safety,” aka “Realignment.” It’s a dry title for what is one of the more transformative pieces of criminal legal reform legislation adopted by any state in recent history.

Transformative, and yet almost completely ignored. The New York Times had multiple articles on the federal First Step Act, which made it easier for people convicted of federal drug offenses to leave federal prison a little earlier, and when the Senate passed the bill it was literally A1 front page news… even though the bill did very little.² Realignment, which not only drove the national decline in state prison populations but which, as we will see, provided a radically different way to think about reforms should do, got one mention, way down on page A14, with the stirring headline “California Begins Moving Prison Inmates.”

Here I just want to provide a brief explainer for what Realignment is and the problem it sought to solve (that almost all other reforms gloss over), as well as some of the complicated political reactions to it, which point to the significant hurdles a policy like Realignment faces.³ I find myself referring to Realignment more and more these days, but (unsurprisingly, given the media coverage) most people not already in the weeds of reform are unaware of what it is or what it did. So I thought a short explainer could be good.

The Problem: A Glaring Moral Hazard

To start, it helps to describe the problem Realignment sought to solve. We often talk about [waves hands around] as the “criminal legal system,” singular, but it is really the “criminal legal systems,” plural. It is not a single entity, but a somewhat-incoherent web of overlapping institutions, each with different constituencies, different goals, different powers, and different budgets and funding.⁴ City police, county DAs, county sheriffs and jails, state prisons, state parole boards, state-but-also-often-quite local legislators. It’s sort of a mess, and the way the pieces overlap often makes little to no sense.

(As a side note, this is why I always push back when people say “the system is doing what it was designed to do.” First, again, systems, plural. But more important, our current criminal legal systems were not coherently designed. That said, our refusal to fix the defects is far more intentional. It may have not been clear exactly how having local police, county DAs, and state prisons could misfire, especially back in the small-government days when these rules came down. But now that we know, and know how to address the flaws, and fail to? That’s a conscious choice.)

Back to the problem. Sometimes these strange jurisdictional fractures create significant loopholes, and one of the biggest is what I call the “Prosecutorial Moral Hazard.” The idea behind it is simple. District Attorneys, by and large, are elected by counties and funded by them as well.⁵ Jails–which are not just where we hold people pre-trial, but where those convicted of misdemeanors and sentenced to lock-up serve their time as well–are also county-level expenses. But prisons, where we send people convicted of felonies? Those are paid for by the state.

Which means sending someone to prison is free, in budget terms, for the prosecutor, since a completely different level of government has to foot the bill. Arguably more than free, since a misdemeanor sentence costs the county money, and a felony one does not, so prosecutors may feel genuine pressure to up-charge to avoid the costs. Even if they don’t, that states pay for prisons means that prosecutors do not think about the costs of their decisions, which is still an Econ 101 example of how negative externalities arise.⁶

So being tough on crime–sending someone to prison–is not just politically safer (even today, it pays, or at least rarely hurts, to generally be tougher on crime), but fiscally cheaper. It’s a strong incentive to be tough.

The Problem in California: Massive Overcrowding

The moral hazard, which exists in almost every state (except a few smaller ones with “integrated” systems that seem more Fed-like in their centralization), is the first part of this story. The second is California’s egregious overcrowding problem. Coming into the 2000s, California’s prison system had been defending itself against an on-going class-action suit about its conditions of confinement for decades. With its prison population at ~200% capacity, inadequate health care appeared to be causing ~60 preventable deaths every year (see footnote 4 here)–which was more than the total number of people executed in every state nationwide each year for all but a handful of years. Which is to say: arguably the most active death row in the United States was California’s general population, due to extreme overcrowding.

A three-judge panel from the 9th Circuit eventually appointed a receiver to oversee the California prison system to rectify its unconstitutionally dangerous conditions, and then required that the state cut its prison population to 137.5% of capacity. The state appealed, arguing that the harsh Prison Litigation Reform Act barred the suit, but narrowly lost, 5-4, in Brown v Plata. California had to scale back its prisons.

And the solution it chose was to adopt was Realignment.

Realignment

AB 109, aka “Realignment,” was a sprawling, complicated law, but at its heart were provisions targeted the prosecutorial moral hazard. California had had success along these lines in the past: California’s juvenile prison population fell sharply in the latter half of the 1990s when a state law required counties to pay a much bigger share of the costs of confinement, effectively cutting off (or at least greatly reducing) a specific instance of the moral hazard. Under Realignment, California created a category of offenses called “triple-nons”: non-violent, non-sexual, and non-serious, where non-sexual meant that the person did not need to register as a sex offender, and non-serious addressed the fact that some major financial crimes were legally seen as serious, even if non-violent. If someone was convicted of a triple-non offense, they were, by and large, required to serve their time under county supervision, either in county jail or subjected to programming provided by the county.

In other words: the county how had to pay. For these (quite numerous) lesser cases, the free lunch was over.

This led to a quick and substantial drop in incarceration rates, as counties were required to take responsibility for people convicted of lower-level felonies, with prison populations dropping by about 30,000 people in the first year.⁷ Now, some of that was offset by more people ending up jails; our jail data is far less reliable (nationwide, not just in California), but one study suggested that jail populations rose by ~10,000, so offsetting a third of the decline: not nothing, but not close to everything either. Counties were still willing to lock up some people at their own expensive, but definitely not all the people they had been more than willing to lock up when they didn’t have to pay the costs of confinement.

Thus twice California has experimented with making those deciding who to lock up pay for those lockups, and both times it has led to significant and immediate declines.

Yet, by and large, no state has followed in California’s footsteps, certainly not to the extent California did. Indiana, for example, appears to have tried a small-scale version that broke down because they did the budget math wrong.⁸ And I feel like I heard of at least one other state has tried to push its lowest-level offenses back to the counties, but that feels fuzzier to me.

Maybe it is just because they don’t know better. But years ago, at the start of my career, when I said something along those lines at a conference, Mark Kleiman quickly berated me for assuming politicians “didn’t get it.” His point–and he’s right–is that they do get it, that they tend to get reelected because they are good at their jobs. So if they aren’t listening to the “good policy” ideas, it’s incumbent on those proposing those ideas to figure out the political sticking point that is getting in the way.

A Few Quick Thoughts on the Politics

There are two issues I want to touch on here about those messy politics. First, while the moral hazard sounds like a bad thing–it has “hazard” right there in its name!–it isn’t to everyone. Prisons provide jobs and political power (via the prison gerrymander) to those communities that have prisons in them, and both benefit generally-Republican constituencies. So it’s worth noting that California, with Democrats holding near-supermajorities in both chambers, struggled to fix its overcrowding, and only did so, grumpily, after multiple court interventions and an eventual Supreme Court loss. In states with narrower, more-vulnerable Democratic trifecta, hesitancy will likely be greater still, and in states where the GOP has any power at all, the idea likely faces almost-insurmountable odds.

This is not a reason to give up on pushing for Realignment-like policies! I just think it is important to be realistic about the politics here. As I pointed out in footnote 3 above (or below, depending on how you think about it), the longest piece I’ve written about Realignment was a review of a book in which the author argued that states should just adopt Realignment without discussing why they would do so, or how to get them to. In other words, the book took mass incarceration as just a failure of policy, not an affirmative expression of politics. It is definitely the latter, and we need to think about those politics more clearly. Because when we do, sometimes surprising solution pop up (like how the Second Amendment can get conservatives on board with expanding public defender spending).

Second, and related, California provides a good lesson in how the goals of these policies can be subverted, sometimes quite quickly. In the case of California, counties immediately complained that their jails lacked the capacity to handle the increase in demand, and that they lacked the fiscal capacity to build quickly. And they weren’t entirely wrong on that front. So Sacramento provided some subsidies to help counties scale up … subsidies which (via both legislation and a constitutional amendment adopted by referendum) then became permanent. If the whole idea of Realignment is to make counties pay their way, subsidies are a direct contradiction. But, again, this points to how tenuous the politics are here. There’s not a strong constituency for “make counties pay,” so this seems like a conventional diffuse-benefits-concentrated-costs scenario.

All that said, it is important to acknowledge that Realignment represents a distinct way to approach criminal legal reform. Most policies have taken aim at the substantive rules: cutting sentence lengths, raising dollar thresholds for felony theft, expanding parole options. Realignment instead looked at the deeper fiscal incentives, and the explicit way those incentives were incoherently split among various jurisdictions, and targeted those.

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1. Our count of people in prison is a one-day count: the number of people in prison on December 31 of any given year. So if someone is admitted in February but released in November, they are never counted in any year’s total population count (although they do show up in the admissions and releases data for the year they come through the prison). Before the 2010s, California admitted (and released) something on the order of 60,000 to 80,000 such people every year; post-2011, that collapsed down to 10,000 or fewer. ↩︎
2. As one person once described it to me, given how many people the Federal government released from prison each day before the FSA, the FSA was akin to adding three days to the calendar. ↩︎
3. I talk about Realignment in more depth here, and much of this is a summary of that piece for a wider public audience. That piece was a rebuttal to a book by Franklin Zimring, who argued that all states should adopt Realignment-like policies. I actually agree with that! But I was troubled that Zimring did not confront the politics of why they had not already, and why it took so much effort to get California to do it in the first place. It was a turning point of sorts for me, when I finally fully internalized that mass incarceration was fundamentally not a policy failure but a political one, and no “adopt this fix” proposal was all that useful without a roadmap for how that might come about. In short, what reformers often see as bugs to be fixed are, to many other (often quite powerful) political actors, features. Features they will fight hard to preserve. ↩︎
4. The exception here are the Feds, which are far more unified, since–at least nominally–all the federal police agencies, the federal prosecutors, and the federal prison system ultimately report back to the President. Nothing even remotely like that is true in almost all the states. Which, again, hold ~90% of all people in prison and surely make even (far) larger percents of all arrests and total (misdemeanor + felony) convictions. ↩︎
5. That data on funding is from 2005. It’s old enough to vote, just about able to drink. It’s also the most up-to-date BJS data we have on the issue. ↩︎
6. If it seems outlandish to suggest that prosecutors think “this felony charge is actually cheaper than a misdemeanor one,” I’d refer to a colleague of mine who once told me that judges in their state have told them they think about this. If the county-elected judge sends too many people to jail vs. prison, the county political machine may not help them in their next election, because he was “too expensive.” If judges think about this, why not prosecutors? ↩︎
7. After that, things held steady for about three years, until another, unrelated reform (Prop 47). The one-off nature of the decline has often struck me as a consistent feature of big reforms–immediate impact, then stasis–but I have not yet looked at that rigorously. ↩︎
8. The article (which, if paywalled, can be read in almost all its entirety here) isn’t entirely clear, but it looks like the law conflated average and marginal costs, and assumed that the state would save the average cost of each person diverted back to the counties, not the marginal, which is substantially smaller. So when the program went into effect, its subsidy component faltered because the over-estimated savings did not materialize. The marginal/average costs issue is a big one, but not the subject for this post (I’ll definitely get to it later, because it’s a big one a lot of people get wrong). ↩︎