Finding 6: The State faces an immediate prison overcrowding crisis that cannot be resolved through the existing state process for developing and operating prisons.

In previous Findings and Recommendations, a path has been charted that if implemented correctly could be expected to begin reducing the demand for new prisons shortly after the turn of the century. Over time that demand could be reduced significantly.

But the State faces a more immediate crisis.

The Department of Corrections estimates that in mid-2000 the State will run out of places for additional inmates in existing facilities. Even if the Legislature were to agree immediately to build a traditional prison, CDC maintains that it could not design and construct a new prison by that date.

Similarly, some of the reforms advocated earlier in this report -- such as community-based sanctions, drug treatment and parolee assistance programs -- would ease prison populations. But that relief would not be large enough and quick enough to resolve the immediate crisis.

The State, however, does have the capacity in a relatively short time period to seek proposals from all potential qualified bidders to build and operate facilities to meet the immediate need. The facilities also could be required to implement programs known reduce recidivism among released felons, suppressing future demand for facilities.

The Current Crisis

For years, prison officials have described a pressing need for additional prisons. Even as the State has spent billions constructing new prisons, the anxiety has increased. CDC is most proud of how it has expanded the prison system while maintaining a low escape rate. But it has displayed some of it greatest creativity in finding new ways to house more inmates inside its prototypical prisons. The chart to the right display's CDC's projection for the inmate population to exceed prison capacity in three short years.

The director of the department testified: "The housing gap and crisis is real. It is not made up. It is an attempt to respond to our primary mission, to house the inmates sentenced by superior court."⁽¹²⁸⁾

But CDC officials also maintain that there is another maximum capacity: a limit defined not by architects, engineers, wardens or legislators -- but by rioting inmates or a persuaded judge.

The department has adamantly argued that state policy makers should not allow the operations of prisons to be dictated by the courts, and out of state observers who participated in the Little Hoover Commission's advisory committee were aghast that a state would accept any realistic risk of experiencing a prison riot like the one that killed dozens of inmates in New Mexico.

Yet the department, in its plea for more facilities, makes both arguments:

It is incumbent that the State not allow the commitment to public safety to be undermined by court intervention and court order early releases of felons due to the increasing overcrowding in California's prison and the lack of housing capacity. Equally important we must be committed to taking every possible step to address the increasing danger to which the men and women that work in CDC's institutions are exposed. We must ensure public safety and safety of our staff and ensure that felons serve their full sentences as prescribed by law.⁽¹²⁹⁾

When the department took that position in 1996, it could conceivably plan, design and construct additional prisons before reaching what it now defines as its absolute capacity. But given the three years that it takes to go from a prison authorization to operation, the State now finds itself in an unprecedented position.

Over the last couple of years, the wild card option considered by the Legislature has been to contract with private companies to build and operate additional facilities -- potentially lowering the cost to the State, while accelerating the construction process.

Defined merely as an alternative to a state-run prison, those legislative proposals have not gone much further than CDC's proposals. And in some ways they have complicated the debate by adding new elements to already controversial correctional policy: Can the State ethically assign the job of "denying freedom" to a private firm? Can the State trust private firms to control a dangerous inmate population?

To up the ante, Corrections Corporation of America (CCA), the nation's largest private prison company, has announced plans to build a speculative prison in Kern County's California City, where CDC would like to build a prison of its own.

The chart below displays the anticipated time frame for planning and construction of the CCA prison near California City and a typical California Department of Corrections' prison. The CCA prison will be designed to hold 2,000 inmates. Planning began in September 1997 and the company anticipates completion in October 1999. CDC prisons are designed for 2,000 inmates, but modified from the beginning to hold 4,000 inmates. From the time of legislative authorization, it takes more than three years to bring a state-owned prison on line.

If the CCA prison is built, and the State has few options for housing its expanding population, the ethical decisions about privatizing medium- security prisons may be moot. But perhaps more importantly, the State will have lost an opportunity to expand its experience with contracted prisons in a way that has the greatest potential to hold down prison operating costs in the short term and crime and overall correctional expenses in the long term.

The Commission was warned by CCA's greatest competitor that "spec" private prisons developed in other states have not provided the same price benefits as private prisons contracted for as part of a competitive bidding process. More important in the long run, the State's only real concern will be to buy time.

In the context of the current debate, the goal is short-term: to avoid riots and court releases. By limiting the debate to private or state prisons, the the State will continue to face the dilemma of the last 15 years -- spending billions of dollars to construct prisons that cost even more to operate in order to house a growing prison population comprised largely of inmates sentenced to longer terms for repeating the same crime.

The Immediate Opportunity

As described in Finding 5, the real benefit of contracting out government services is not the organizational structure of the private service provider. The real gains, in both cost savings and improved programs, have come through competition in which capable providers -- public, private or partnerships involving both -- compete to provide services.

In this context, the solution to the State's immediate crisis should meet four criteria:

• Accommodate the demand. The State estimates that its inmate population will swell by nearly 10,000 additional inmates a year over the next five years. As described in Finding 2 and Finding 3, this demand could be curbed quickly by expanding community-based punishments and parole services. But still, the State will need to expand its capacity, and the greatest demands will be in Level II and Level III security inmates.



• Quick implementation. Private operators -- partly because they build smaller facilities and partly because they are private companies -- have shown that they can build facilities quicker than the State's already accelerated three-year planning and construction schedule.



• Costs less. The common ground in the divisive debate over additional prisons is that the State needs to find mechanisms that place constant downward pressure on operational costs. The best known devise is competition among providers.



• Better results. Increasingly, the State's prison population crisis is the result of felons who serve their time, are released and fail to reintegrate into society. They violate parole or they commit new crimes and receive longer sentences. The only way to fundamentally reduce prison costs without eroding the tough sentencing policies enacted over the last 15 years is to do more with felons who are incarcerated to improve the chances they will not commit additional crimes and be returned to prison.

One model for achieving all four goals is a competitive process. It provides the opportunity to harness the efficiencies derived through competition to move toward the public goals of safe prisons and safer streets.

The president of Wackenhut described why he believed private prison operators can improve public programs:

Despite the best efforts of governments around the world to emulate private sector methods through a variety of means, more than marginal savings frequently seem unobtainable or unsustainable. I suspect this is due to the lack of a profit-based structure. In short, no one has yet devised a better pencil sharpener than the private sector in open competition.⁽¹³⁰⁾

The potential benefits of prison services derived through competition extend beyond secure prisons, where public safety does not begin and end at the prison gate.

Correctional officials are right: Prison inmates are troubled people. One private prison professional described the traits of inmates in both private and public prisons:

Studies show that while the incidence of anti-social personality disorder is less than 4 percent in the general population, the incidence is as high as 80 percent in the prison population. These individuals come to re-entry programs manipulative, selfish, callous, impulsive, blaming others for their problems and irresponsibility and full of excuses. Nearly 90 percent abuse alcohol and drugs and 85 percent have problems holding a job and 79 percent are financially dependent on others.⁽¹³¹⁾

But the manager went on to say that rather than releasing those inmates at the end of the term unchanged, cognitive therapy as described in Finding 3 can reduce recidivism by 33 percent.

Those programs can be administered by public and private organizations. Some private companies have been among the leaders in developing and refining those programs, inspired either by a desire to change lives or to improve the service they provide. "We have to do this," one provider said, "to show that we are doing more than trying to make money." He described his program:

Operating within a restorative justice model, re-entry staff teach that merely serving time does not relieve offenders of the obligation to repay their victims or to perform community service to compensate for the societal impact of their crimes. Too often lawbreakers learn to take the punishment without taking responsibility for the offense. In sharp contrast, Cornell Corrections staff teach offenders to be accountable to the victims they have harmed and the communities they have disrupted by calling on these offenders to acknowledge their guilt and to make amends.⁽¹³²⁾

And finally, a correctional system that relies on competitive procedures to award contracts and compensate service providers based on outcomes, creates a system embedded with the accountability often sought by policy makers.

California, like most states, does not track inmates when they are released from prison. As a result, there is no data to determine what effects -- good or bad -- that the correctional system is having on people who serve time behind bars.

The Department of Corrections has recognized the need for this kind of accountability. As part of its 1997 strategy plan, the CDC's top goal is: "Improve the department's ability to protect the public from harm by inmates and parolees." The performance measures are: "Ratio per capita of inmate escapes. Recapture rate of escaped inmates. Percentages of PALs (parolees at large) returned to custody/supervision. Number of law enforcement agencies using parolee information."

The outcome measure that would have the greatest impact on both crime and prison costs is recidivism by released felons. Through a competitive process, the State could establish that benchmark for service providers. With reducing crime as a goal and recidivism as a measurable benchmark, the motivations of all agencies involved in administering the State's correctional policy would change fundamentally from housing inmates to correcting criminals.

And finally, even if the State were to chart an aggressive path to provide additional housing space, it is possible that events beyond its control will require releasing inmates before their terms are complete, or diverting some felons to punishments other than prison. The State should prepare for that possibility so that it can control how those mandates are implemented. A number of local correctional authorities have had to make similar tough decisions. Through the Board of Corrections, which represents those local authorities, the State could develop an informed strategy for pro-actively dealing with an unfortunate possibility.

Summary

An alternative that combines much of what we have learned in recent years would be to award through a competitive process contracts with prison providers who would be obligated as part of their contract to provide services that are known to reduce recidivism. The contracts should be outcome-based, requiring providers to show over time that their programs are reducing recidivism.

Recommendation 6: After giving consideration to the treatment and reintegration programs advocated in previous recommendations, the Governor and the Legislature should ensure there are enough state and county facilities to accommodate growth in the inmate population through the year 2003. The facilities should be acquired through a competitive process. To maximize public safety, contractors should be required to meet minimum operational standards and provide to all inmates the services that have been documented to help inmates successfully reintegrate into society.

• The Board of Corrections should administer the contracts, which should require providers to assess the corrective needs of inmates and provide the vocational, educational and therapeutic services that have been shown to reduce recidivism. As quickly as the State develops the expertise, the contracts should be amended to include financial incentives based on the safe operation of the facilities and the recidivism of released inmates.



• The Board of Corrections should make an early release assessment. The board should review the current prison population and recommend to the Governor and the Legislature a plan detailing which types of inmates should be released in the event that a population cap is imposed by the courts. The plan should seek to minimize the risk to public safety by identifying groups of inmates who are least likely to engage in violent or serious crimes if released. The plan should include ways those inmates could receive intensive supervision and services known to reduce the chances that they would commit another crime.