California's 'Cruel and Unusual' Prisons

Despite court orders and ballot initiatives, Golden State prisons remain criminally overcrowded.


In 2011, the U.S. Supreme Court ruled that California's treatment of its state prison population violated the Eighth Amendment's ban on "cruel and unusual punishment," and ordered the state to reduce prison overcrowding. But even with liberal Democrats running the state, it has taken court orders and direct voter referendums to ameliorate the problem. Why? Part of the blame lies with the close ties between the party and organized labor.

California's three-strikes law mandates that certain repeat offenders receive harsh sentences, whether or not a judge deems the penalty warranted. Enacted in 1994, the law was championed by Democrats looking for any opportunity to prove they were tough on crime. Law-and-order Republicans were only too willing to join in supporting firm sentencing mandates.

The three-strikes law is one reason that by 2006 state prisons had reached double their capacity. As California's prison population rose, conditions rapidly deteriorated, resulting in gymnasiums filled with cots, prisoners sleeping in stairwells, and a near-total lack of mental health services.

When a referendum to overturn three strikes made it onto the ballot in 2004, the California Correctional Peace Officer's Association (CCPOA) launched a campaign to defeat the measure. As expected, then-Gov. Arnold Schwarzenegger (R) and GOP lawmakers came out against the proposition-as did current Gov. Jerry Brown (D), who at the time was mayor of Oakland and gearing up for what would turn out to be a successful run for state attorney general.

Brown's unwillingness to deal decisively with the prison debacle has a lot to do with his union ties: When he ran for governor in 2010, the CCPOA contributed more than $2 million to his campaign. After the Supreme Court ordered California to reduce its prison population, he signed the Public Safety Realignment Act, a law that requires nonviolent and other lower level offenders to be offloaded to county jails. Such jails may in fact be more appropriate places than state prisons for less dangerous inmates to reside, and many counties have touted their successes with supervised parole. But predictably, since 2011, the county jail population has ballooned by 16 percent, sending county officials scrambling to figure out how to meet the needs of a new crop of long-term inmates. In addition, thousands of pre-trial inmates had to be released to free up space in jails for the convicted felons. The overcrowding problem wasn't solved-it was just shifted from state prisons to county jails.

In 2013, Brown proclaimed that the "prison emergency is over in California" and promised continued financial support for county jails working to handle the influx of new inmates. But the state's prisons are still operating at roughly 140 percent of capacity, and after five years of decline, California's prison population ticked up in 2013. One reason the state has found it so difficult to reduce its prison population is that the three-strikes law mandates harsh sentences for many drug offenders.

"Drug policy is the major driver of mass incarceration, both in California and nationwide," says Lynne Lyman, California state director of the Drug Policy Alliance. She points to the massive increase in the state and federal prison population following the 1980s ramp-up of the war on drugs. In California prisons alone, there are more than 11,000 inmates incarcerated for drug-related crimes, accounting for almost 9 percent of the total prison population. More than half of those were sentenced under the three-strikes law.

Despite this, Brown has resisted reform. In late 2013, he vetoed legislation that would have changed the state's sentencing structure by allowing prosecutors to charge certain drug crimes as misdemeanors instead of felonies. But in a rebuke to their governor, California voters in November approved, by a 17-point margin, a referendum titled Proposition 47. Among other things, the initiative automatically downgrades most drug possession charges from felonies to misdemeanors.

Prop. 47's success is a victory for drug policy reform in California. But until lawmakers get behind a more thorough and sustained dismantling of draconian sentencing guidelines, America's incarceration problem isn't going away.

Zach Weissmueller ( is a producer at Reason TV. To see a video version of this story, go here,or see below.

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  1. But if if wasn’t for unions who would teach your children, put out your fires, keep you safe, and build your skyscrapers?

    1. Fight Club?

    2. Howard Roark?

    3. Scabs. Scabby scabs scabbing about.

    4. likely, ppl more qualified to do those things at a significantly reduced cost.

  2. The prisons in this country are a national disgrace. As horrible as the prisons and jails in the 19th Century were, we at least didn’t put many people in them. Our jails now, while in some ways better, are in many worse and we have filled them with hundreds of thousands of people.

    In addition to obviously rethinking our laws and the drug war and such, I think we need to rethink the entire concept of prison. People say corporal punishment is so inhumane. How is locking someone in a cage for years any less? The modern concept of prison is relatively new. It was invented by a bunch of religious fanatics who thought they could transform people’s souls through various frankly insane means. Read the history of the Eastern State Penitentiary, America’s first real prison, sometime. It makes for horrifying reading.

    Clearly there are some people who represent a continuing threat to society such that locking them up is the only option. Most people in prison are not like that. Sure, we need to deter people and make crimes not pay, but that doesn’t require locking them up.

    1. I would suggest that much of this begins with thinking about laws themselves. Instead of busying themselves with coming up with new ways of organizing us, TopMen should be required to spend time reviewing existing laws – see which ones work, which ones are no longer applicable, which cause more harm than good, etc.

      When everything is illegal, then you will of course have more criminals. Perhaps a good start would be revisiting the very definition of crime.

      1. Yes. The laws are the more pressing problem. I still think however we need to also rethink the entire concept of prisons. Indeed, doing that might also get people to start to rethink laws. If putting people in prison isn’t the answer to every problem, maybe passing a law isn’t either.

        1. and I’m not disagreeing with revisiting what prisons should be. Just saying that the default approach of the elected class is ‘do something’ and that usually means more laws. Laws have to be just or they lose their moral authority.

          Increasingly, people see locking up someone for a bag of weed as moronic, they lose respect for the system. I remember a die-hard conservative running for the state house in my old district with the idea of rehab rather than prison for drug offenders. He lost. So did the community.

          1. Laws have to be just or they lose their moral authority.

            No society can exist unless the laws are respected to a certain degree. The safest way to make laws respected is to make them respectable. When law and morality contradict each other, the citizen has the cruel alternative of either losing his moral sense or losing his respect for the law. These two evils are of equal consequence, and it would be difficult for a person to choose between them.

            I lost my respect for the law a long time ago. Luckily I already had a strong sense of morality. This really becomes a problem when someone doesn’t start off with a moral foundation. They end up killing people on the streets of Chicago or LA.

        2. My mother used to be a fervent drug warrior, but she’s started to change her mind. A good friend of hers switched from being a raging alcoholic to being a pothead. She gets her drugs from her son. I asked my mom if they would be better off in prison, and that really got her to think. Unfortunately people don’t give the issue much serious thought until it affects someone close to them.

        3. We absolutely need to rethink the point of imprisonment. There are plenty of people that think it needs to be even worse, because to them it is a twisted good-v-evil narrative with they and their proxies as the heroes. I can’t count how many people I’ve interacted with who have shared some kind of horrible punishment or execution fantasies about people who sell pot to teenagers, for example. There is still a lot of sick thinking out there. I think the trend has been to be as horrible as possible to society’s undesirables. Nothing can change until we start focusing on rehabilitating both criminals and “criminals” with an eye to reintegrating them back into productive society. Rethinking the concept of criminal justice entirely. And that transition, I think, is going to be massively difficult, because it also requires reform in other areas of society, such as barriers to job creation, crimes that should be misdemeanors that are felonies making people nearly unemployable, etc..

        4. Some ancient criminal systems treated all crime as either felonies (you die) or restitution, I think. I’m probably oversimplifying. But there was no concept of locking somebody up; either they owed money (or a chicken to replace the one they stole, etc) or they were simply too evil to be part of society, a felon, an outlaw. Might have been the Iceland system, or England before the Normans came in.

          I like the idea of every crime (and I mean crime with real victims, who are the ones to prosecute) being punished by restitution alone, and the idea of lockup for habitual irredeemable criminals being an entirely separate matter. Enforce it by limiting restitution debtors to only filing charges where the restitution is more than what they themselves owe, and maybe lock up only those who owe for more than, say, two verdicts at once, or some other self-selecting way of identifying irredeemable criminals.

          1. I like how yous think….

      2. I think requiring actual victims for all crimes might be a nice start.

        1. I believe the Constitution should be amended with a clause which states that neither the federal nor any state government shall make any activity that does not violate, through force or fraud, a persons right to life, liberty or property, a crime.

          -Neal Boortz

    2. I agree. All prisons do is teach people how to live in prison. That’s it. Meanwhile you get the double-whammy of the people not contributing to the economy combined with the opportunity cost of the money spent to keep them in prison.

      I seriously believe we should go back to corporal punishment for most crime. Lock shoplifters up in a stockade and send school children there for a field trip. Give violent criminals a few licks with a bullwhip. Save the prisons for people who truly cannot function in peaceful society.

      1. I think this makes sense. Unfortunately it would offend too many delicate sensibilities. Thieves and violent people are just misunderstood victims of society who need to be “rehabilitated”.

        1. Because you are full of shit.

      2. Me too. People who shoplift or write bad checks and such are generally just fuck ups who need to be deterred not real threats to society.

    3. You’re contradicting yourself – locking up some people is the only option but we need to rethink locking people up?

      I’m just going to assume you’re talking about rethinking locking up people for victimless crimes, and the people you think need to be locked up are the criminal personality types who see nothing wrong with committing property & violent crimes.

      One reason why real criminals are locked up for lengthy periods in costly jails is because the amount of damage, financial & otherwise they’d commit were they free is statistically greater than the cost of keeping them behind bars. The only time this becomes inefficient is if the prisoners are willing to reform themselves where psychotherapy and, say, a post-education or job training program would be way more cost-effective – but this type prisoner is a minority.

      What did they do to violent criminals before the concept of jails, which is apparently just some hogwash invented by fanatical puritans? Oh right they were probably executed.

      1. Your reading comprehension skills leave much to be desired.

    4. Crime isn’t suppose to pay fool!

  3. The problem is that they won’t cut spending–in other areas.

    At one point, they were freeing wife beaters to meet the court order to deal with the overcrowding.

    How pathetic is it when the government would rather free wife beaters than cut spending elsewhere in their budget? Oh, and they’re going to build a high speed train, too!

    If there were ever an argument against getting rid of Prop 13, that’s it right there. If Sacramento had more money to spend, they wouldn’t cut their outrageous spending. They’d just squander more money.

    California’s problem isn’t that they don’t have enough money to spend; California’s problem is that it can’t control its spending. And the solution to drunken sailors squandering our money is not to give them more of our money to spend.

    1. This is exactly why I’m frustrated with the idea of legalizing marijuana in California. I’m a marijuana consumer and I support legalization, however once the California politicians get their hands on the new tax revenue history has shown they will go on a spending spree. The revenue will end up being one more excuse to fund a bunch of unaffordable workfare programs. For every dollar they gain in tax revenue they will spend three, so the only solution is to not give them access to more money.

    2. California’s problem isn’t that they don’t have enough money to spend; California’s problem is that it can’t control its spending. And the solution to drunken sailors squandering our money is not to give them more of our money to spend.

      Exactly. However much money California had to spend, they’d spend beyond that amount. Raising taxes is a meaningless stop-gap because they’ll just spend the additional money rather than using those tax dollars responsibly and you’ll end up exactly where you were in 5 years or so.

      1. and CA’s problem is magnified at the federal level.

    3. Don’t denigrate us true drunken sailors.

  4. The public safety employee unions have it best. “Law and order” Republicans ignore their hatred of unions when it comes to criminal justice issues (heck, the unions don’t even have to donate to Republicans) and Democrats are generally the recipients of the unions’ “donations”.

    1. Yes and no. In Red states the prison guard unions are not that powerful. It is more than conservatives still think it is 1977 and haven’t realized or refuse to realize that the backlash against the liberal reforms in the 1950s and 60s have gone too far.

      1. Yes and no. In Red states the prison guard unions are not that powerful. It is more than conservatives still think it is 1977 and haven’t realized or refuse to realize that the backlash against the liberal reforms in the 1950s and 60s have gone too far.

        There still is an issue with Republicans supporting law and order unions when they would never support a union in other contexts.

        Scott Walker famously didn’t include police or firefighting unions in his anti-union bill a few years back. Now, why would Walker allow police unions to continue collectively bargaining but no other unions? It seems obvious that it’s because of Republican favoritism of the police.

        1. If Walker had gone after those unions, the public would crushed him and none of the unions would have lost. Walker may love cops. I don’t know. But even if he hates them, there was no way he could have taken on those unions. Doing so would have just caused him to accomplish nothing.

          1. the public would crushed him and none of the unions would have lost.

            The reason the ‘public’ would have crushed him is because Republicans would have been upset along with Democrats. As it stands, he managed to get overwhelming support for the measures among Republicans because pro-Republican groups were not included.

            Walker may not personally be a hardcore pro-cop Republican, but he didn’t go after the cops because he was smart enough to know his party.

    2. the public safety unions are symptomatic of the excesses of conservatism and liberalism uniting against the people they represent. Most of us would agree that public safety is a genuine function of govt, but conservatives too often have a slavish devotion to the badge. Liberals, meanwhile, have the same devotion to the money-laundering scheme known as organized labor.

      When you see GOP governors like Scott Walker or Christie take on “public unions”, it is invariably teachers. It’s never cops and firemen.

      1. I think that is a public problem. Walker didn’t take on the cops because the entire public seems enamored with them. Whatever Walker thinks, and I honestly don’t know, it would have been political suicide for him to take on the cops.

  5. This is a sadly misinformed article. California has never had sentencing guidelines and while the three strikes law does increase sentences for new felonies, the court has nearly unreviewable discretion to strike the additional penalty. While there are prisoners serving sentences enhanced by the three strikes law, the vast majority not serving life, there are tens of thousands each year who had the court ignore their prior serious or violent crimes when imposing sentence. Most of those are drug felons who were not otherwise eligible for Prop 36 (the one from from 2000).

    I really like reason, but in criminal justice it sticks to the tired trope that we in CA are sending to prison large amounts of drug users. That is simply not true and hasn’t been true since 2000. When they say the crimes are drug related, they are not telling you what the sentencing crime really is. I assure you it is not likely a stand alone drug crime of possession. For the relative few where it is a stand alone drug crime it is large sales and/or a horrendous criminal history. Lessen drug penalties if you want, but don’t say things that aren’t true.

    1. I agree with you. The phrase ‘drug related’ struck me as a weasel word in the same way ‘alcohol related accident’ often means ‘someone had 2 beers, was very sober, and was T-boned by a guy on his cell phone. Boom, alcohol related!’

    2. So, judges have discretion to ignore three strike laws. Doesn’t mean they do it.…..s-20130327

      Drug-related, not drug-related. I don’t see the difference. California has the worst prison system in the country. I mean, Texas has been more responsive to reform than Cali.

      I’m in the camp above. I’d rather have some form of public shaming and corporal punishment for petty offenses than locking people up for years and years of their live for relatively trivial offenses.

  6. it remains “criminally” overcrowded because of the open border policies that have allowed millions of illegal immigrants to come here and fill up the prisons with criminals. A huge percentage of the prison population is illegals -they aren’t in there because they are illegal, they are in there because they commit crimes.

    This is why we cannot have “open borders” as many people on this website advocate. Immigrants come in and overpopulate areas straining resources including schools, prisons, and medical care.

    1. You forgot to say “God Bless Murica” -5 Points

    2. Illegals make up 13% of California’s prison population:…..30554.html

      While not insignificant, that’s hardly the only problem. That’s still 140k other incarcerated at a cost of about $8-9b to the taxpayers.

      1. If I were going to mount any sort of defense of California on this, it would be that they are 20th among US states in incarceration rates. The issue seems to be more of infrastructure. But the People’s Republic of California would still have the 11th highest incarceration rate in the world just behind Russia.

    3. Even if you took out all the immigrants (documented and undocumented), California’s prisons will still be criminally overcrowded.

  7. My last pay check was $ 9500 working 10 hours a week online. My Friend’s has been averaging 14k for months now and she works about 21 hours a week. I can’t believe how easy it was once I tried it out

  8. “But even with liberal Democrats running the state, it has taken court orders and direct voter referendums to ameliorate the problem.”

    This sentence is greatly improved by removing the word “even”.

    1. Thank you for pointing that out.

  9. At least they make it to an overcrowded prison in Cali.…..s/30973790…..icials-say

  10. Would people who are more informed than me agree that the new ordinance by the City of Lancaster California has no actual due process? The avpress and avtimes (Antelope Valley) reported on a new ordinance that will fine certain shoplifters, forgers, people who dump trash, and so on $500 for the first offense and $1000 for the next offense. The City Council says the fines are to deter crime (even though they say the threat of jail does not). Unlike for traffic fines, for example, there does not seem to be actual due process for those who object to their fines, or any alternative punishment, or installment plan for those who cannot pay.

    We do not know if the fines escalate to huge amounts, e.g., an unpaid $50 metrorail fine for a lost ticket quickly becomes $1,200 and may continue increasing if not paid. Will this lead to debtors prison and ruined lives as do, for example, headlight-out tickets in some areas?

    Among other reasons we voted for Prop 47 is because funding was promised for rehab and life/job skills training. Lancaster’s ordinance seems to fly in the face of this article’s comment that, “But until lawmakers get behind a more thorough and sustained dismantling of draconian sentencing guidelines, America’s incarceration problem isn’t going away.”

  11. There are many more cruelties inflicted in Caifornia prisons than overcrowding. I have an elderly relative incarcerated at Chino, where his wing has not had heat for three winters now. The prison administration apparently does not consider repairing the heating system to be a priority. Occasionally, some extra blankets are issued, but are then capriciously and randomly confiscated by individual correctional officers. I hear that the female COs generally make it a point to inflict as much discomfort on the male prisoners as they can.

    I know of another elderly prisoner who was beaten by other inmates for about a half hour before the COs showed up to take him to the hospital. Apparently, they were temporarily deaf, as all other inmates in that wing heard the clamor. The California prison authority and CCPOA are both corrupt organizations, and Jerry Brown is fighting any court-ordered reforms tooth and nail.

    1. A recent article said that older people need more heat than young people. With so much money going to prison profiteers it is a horrible shame that your elderly relative does not have blankets or heat. Some prisons are so hot in the summer they must move prisoners who are on certain medicines to other prisons.

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