Over the past 50 years, the number of inmates nationwide has risen from about 200,000 to more than 2 million. “That’s a change from about one of every 400 adults who is incarcerated to one of every 100,” says Joan Petersilia, the Adelbert H. Sweet Professor of Law and co-director of the Stanford Criminal Justice Center. In California, Petersilia explains, part of the reason for the rise in the prison population was the sentencing process—as well as parole policies.

“When California had indeterminate sentencing, prisoners could be released by the Parole Board before the end of their sentences, which helped keep the prison population in check,” she says. “But there was a sense that the system was unfair—that some inmates who were denied parole were just as deserving as others who received it. Then, when California moved to determinate sentencing to correct this perceived unfairness and other issues, it eliminated the possibility of parole, except for some defendants who were sentenced to life. The result was an explosion in the prison population.”

The problem came to a head in 2011 when the United States Supreme Court found that California’s prisons were so overcrowded that conditions violated the Eighth Amendment’s prohibition against cruel and unusual punishment. It ordered California to build more prisons or reduce the population by more than 30,000 inmates—inspiring innovative policymaking such as “realignment,” which involved moving prisoners from the overcrowded state prisons to county jails.

California has made great strides since 2011, but reducing the prison population remains a priority. “To further correct the problem of prison overpopulation, California is returning to policies that resemble indeterminate sentencing,” Petersilia says, pointing to passage in November 2016 of Proposition 57, which gives the Parole Board authority over more prisoners and allows prisoners to earn greater credits off their sentences for “good time” and “rehabilitation.”

“But giving the Parole Board greater discretion in release decisions raises many of the fairness issues that previously plagued California’s sentencing system and that have long troubled policy analysts,” she says.

Thus was born Petersilia’s policy practicum, Decarcerating Prisons, which she co-taught in winter quarter 2017 with lecturer in law Debbie Mukamal, executive director of the Stanford Criminal Justice Center. Practicum students were asked to address decarceration issues in a very specific context—Proposition 57.

“The class challenged students to think about the issues the state should be looking at and the advice we could give the state regarding how decarceration can be achieved safely and fairly this time around as it seeks to implement Prop. 57,” says Petersilia.

Ann Linder, JD ’17, focused on the impact of disciplinary infractions on a prisoner’s ability to receive parole.

“The proposed regulations for Prop. 57 have fairly severe consequences for disciplinary infractions; they can result in a one- to five-year delay in getting a parole review,” she explains. “I wanted to know whether this was a good idea and whether it was fair.”

The problems with disciplinary infractions, Linder found, are many.

Decarcerating Prisons
Illustration by Gary Taxali

“Not only is processing disciplinary infractions expensive for the state—each one costs over $1,000—but there is also a presumption that they are related to the likelihood of recidivism. My research found that the literature in this area is thin and inconclusive—that there’s no real proof that these infractions predict behavior out of prison.”

Equally troubling, says Linder, are the differences both within and among institutions in the reporting and punishment of infractions.

“A prisoner may be much more likely to be written up if sent to one institution rather than another. Some prisons have stricter reporting cultures, fewer programming opportunities, and more overcrowding. Even the architecture of the prison can make a difference; if the prisoners share cells, there may be more infractions than when they are in single cells. All of these institutional factors can lead to variation in infraction rate.”

In light of her research, Linder believes the state must undertake more research to ensure that this aspect of the system is working fairly and operating evenly across institutions.

Laura Gilson, JD ’17, was curious about Proposition 57’s effect on victims’ rights to participate in parole decisions.

“Under Marsy’s Law [the California Victims’ Bill of Rights Act of 2008], victims were given substantial rights to participate in Parole Board hearings in cases where the defendant was serving a life sentence,” she explains.

Now, under Proposition 57, more prisoners will be eligible for parole, and in cases involving nonviolent offenders, the proposed regulations provide that a single parole commissioner will conduct an administrative review of the prisoner’s file. While victims can submit statements, there will be no hearing and no live testimony.

Gilson’s research led her to question whether it’s really in a victim’s interest to make statements that often shouldn’t even be considered in the parole decision, given that the victim’s testimony often reflects on the original crime and its impact rather than the issue the Parole Board is tasked with determining: whether the prisoner is likely to be dangerous after release.

“We need to think about whether there is a better way to support victims’ rights and whether we can make their participation more meaningful in a curtailed form at the post-conviction stage,” she says. “At sentencing, a victim’s testimony is usually paramount. Later there may still be a good reason to solicit victim input, but the size of that input should correspond to its relevance.”

Other issues examined by students in the practicum included research by John Bonacorsi, JD ’18, into the fairness of Proposition 57’s exclusion of sex offenders from its mandate; research by Andrew Ntim, BA ’18, looking at the fairness and effectiveness of increasing rehabilitation credits; and research by Nicole Bronnimann, JD ’18, into the fairness of considering an inmate’s remorse when some individuals, such as non-native English speakers, people with developmental disabilities, and others who may not be well-spoken, are unable to express that sentiment effectively.

When the students complete their papers, Petersilia will submit them to the governor and to the Department of Corrections and Rehabilitation with the hope that they will have a positive impact on the fairness of the regulations.

“On its face, Prop. 57 makes perfect sense,” says Petersilia. “Implementation, however, is another matter. As always, the devil is in the details.”