Chickens Come Home to Roost in Context of Federal Court Receivership, Failure to Enact Sentencing Reform, and Budget Deficit That Killed Hundreds of Other Bills Last Week
A big story will unfold today if the anticipated vote is held on the California Senate floor on SB 1665, a $7 billion “revenue bond” to build and upgrade medical care facilities in California’s prisons. There are many important public policy aspects to this legislation and how California got in the pickle it is in with our state prison medical care system which is under Federal Court receivership—meaning either the legislature must pass this bill and the governor must sign it–or see the courts fashion their own remedy—ordering the construction of facilities themselves without the input of our elected officials or ordering the release of some prisoners.
According to the analysis on the bill, principal and interest will total $13.175 billion over 25 years if this bill is passed. That’s real money, even in a state as large as California. Despite being structured as a “revenue bond,” there is no revenue coming in to fund this construction—this is borrowing—the average annual payment out of the state’s general fund (translation—this year’s budget and future budget for the next quarter of a century) will be $527 million and the earlier payments may be higher. This assumes that California will be able to sell these bonds at a rate of 5.27%.
You’d think this would be front page news after a long three day holiday weekend with relatively little hard political news to report on in California. If there’s a story on this in the newspapers of this state today, I missed it.
This is also not a story that has just emerged. There are roots to this that have started growing years, in fact decades, ago. Since 1976, when we in California changed our criminal sentencing laws from indeterminate sentencing to the present, prison terms for offenses have been added to and lengthened, bit by bit, ratcheted up, so that now California is housing 1 out of every 5 new inmates in the United States. We are at the point where we are about to cross the threshold of spending more on our prisons than the state spends on higher education.
We’ve reported on this in dozens of articles, referencing the study after studies that have been released over the years—including those from Republican Governor George Deukmejian, that have recommended reforming our sentencing laws.
Californians and our elected leaders are of two minds on penal policies. On the one hand, those who have to run for re-election are afraid to vote against bills that are put in the legislative hopper every year increasing sentences for one crime or another—for those committed to different classes of people or under different circumstances. Bills are introduced to set up vulnerable incumbents as being soft on crime if they vote against these. It’s a bipartisan game that is played—more by Republicans than Democrats.
Then there comes the bill (in the legislative sense and the pay the piper sense) to pay for this. We are faced with the reality that the public does not want to pay for prisons. They ranked the lowest of the priorities that voters wanted to protect in last week’s Public Policy Institute of California’s survey of voters. Because of this and the pattern in countless other polls of the low priority the public places on prison spending, voters never gets to vote on such a bond on the ballot–like we have to in order to build roads, schools, and all other kinds of projects. Instead, the legislature, as they did last year in voting to spend $12 billion on prison construction, passes these revenue bonds, borrowing from revenue streams that do not exist. This Rube Goldberg fiction sweeps the problem under the rug—and despite the filing of a legal challenge to it—the courts have not intervened.
This makes for some strange bedfellows as some of the same law and order Republicans are skitzy in voting for funding these prison costs. And some Democrats and penal reform supporters are loathe to vote for more prison spending, especially at a time we are cutting education, health care, human services, and so many other important programs.
The vote and the debate this afternoon will be interesting for a number of reasons. That is, if there is a debate, and if it is not postponed. Sometimes mega bills like this pass with little said in floor debate. There’s a break for caucuses of both parties behind closed doors. The bill requires a two-thirds vote and Republicans have laid off of supporting it in committee. It passed the Senate Public Safety Committee 4-1 with the dissenting vote coming from Republican Senator Cogdill. It passed the Senate Appropriations Committee on a 9-1 vote, with Republican Senator Ashburn voting no and 4 other Republicans not voting on the bill—so it was a closer vote than one might otherwise think.
Last Thursday, when the Senate Appropriations Committee took up the “suspense file” of all bills spending more than $50,000, only 33 out of approximately 150 bills were passed out. That means that about 75% to 80% of bills—that had already passed their policy committee (and in some cases more than one policy committee)—were killed. Out of a total of $116 million on suspense (an unusually low amount in and of itself) only $2 million was approved for our state of 38 million residents in this year of budget extremis. A similar pattern held in the Assembly Appropriations Committee on their vote on fiscal bills last week. And we know there is more cutting and much weeping and gnashing of teeth that will take place until a state budget is passed.
But we have little choice, given the political realities and what we have set up, to the imperative that our prison health care facilities and medical care be brought up to minimal Constitutional standards—or the Federal courts will make the decisions for us. And, by the way, this bill is for the construction expenses only. There are hundreds of millions of dollars on top of this that will be needed to pay for the medical treatment each year to bring it up to the level required.
So, J. Clark Kelso, Receiver of the California prison medical care system, appointed by the U.S. District Court judges who have been issuing orders in cases going back into the last century on our overcrowded prisons and inadequate medical care, is the sponsor of this bill. In support of it, he says as quoted in the floor analysis:
“Upon my recent appointment as Receiver responsible for leading California’s prison medical care system, I reviewed all of the initiatives that the office had underway and, after some careful pruning, settled upon a strategic plan for providing constitutionally adequate medical care as soon as practicable (a copy of the plan is available on my website at www.cprinc.org). …
“SB 1665 provides the remaining funding …with an authorization of $6.9 billion in lease-revenue bonds and $100 million from the general fund, for a total authorization of $7 billion. I believe that securing this funding from the Legislature through lease-revenue bonds is the most fiscally responsible approach to achieving my court-ordered goal of providing constitutionally adequate medical care as soon as practicable.
“Approximately $1 billion of the appropriated funds would be used to improve existing clinical and medical administrative facilities at existing prisons. Existing prison medical facilities are plainly inadequate to the task. There is inadequate space in virtually all institutions, and the space that is available is poorly equipped and, in many cases, simply unsafe. We are not able to deliver constitutionally adequate care in these facilities. The facilities must be upgraded.
“The remaining $6 billion will be used to construct 6 or 7 long-term care facilities to serve the medical, mental, dental and ADA needs of approximately 10,000 patient-inmates. By consolidating in these facilities those inmates who have serious, chronic conditions requiring regular medical care, we can improve the quality of care to constitutional levels and do so in the most cost-effective manner possible. At present, these 10,000 patients – approximately 6% of the existing CDCR adult population – are spread throughout CDCR’s 33 institutions, creating excess demand for health care at each institution that simply is not being adequately met. Inmates are dying unnecessarily because the existing facilities do not provide an environment where constitutionally adequate care is possible.”
Taxpayers for Improving Public Safety—who advocate prison sentencing reform and who have recently filed a lawsuit against the prison construction bond passed last year by the legislature–state in opposition to this bill:
“It is bad public policy to invest an additional $7 billion dollars on top of last year’s AB 900 $7.4 billion plus, which once construction is completed will require an additional $3 billion dollars annually in current dollars to operate the new beds which will be constructed, in a product that has a 70% failure rate as does CDCR with its incredibly high rate of recidivism.
“Given California’s compromised credit rating and current interest rates, before the SB 1665 and AB 900 bonds are repaid, our children and grandchildren will have spent more than $30 billion on debt service alone without even taking into consideration the annual operating expenses of these new facilities.
“Of greater importance, before you vote to approve this legislation, you must ask: Can a fundamental constitutional right be subverted by the legislature, i.e., can the legislature approve bonds which do not have an independent repayment source without voter approval?’ At issue is the integrity of Article XVI, Section 1, of the California Constitution which guarantees voters the right to approve bonds. This legislation seeks to approve a new state indebtedness in excess of $300,000, which will ultimately be paid from the general fund, regardless of the use of the canard of a lease between CDCR and the Board of Public Works.
“How can the Legislature demand respect for ‘law and order’ when it seeks to find ways to subvert a constitutional limitation? As stated by the Oregon Supreme Court involving similar litigation, this is ‘a scheme which would fool only a lawyer.’
“At a time of extreme budget shortages when the Legislature is compelled to cut funding for education, public safety and healthcare, to name but a few governmental necessities, before a bill such as this is even considered, a thorough study of its potential effectiveness should first be presented to the committee.
“Albeit there is absolutely a need for improved health care in the State Penal System, instead of a new bond, the AB 900 money should be converted to pay for the Receiver’s needs and a sentencing commission should be immediately created in a manner similar to the Federal Military Base Closing Commission to examine the effectiveness of our current sentencing laws, determine which incarceration periods should be increased and which should be decreased, and create a procedure for the release to secured treatment facilities for (1) geriatric inmates who no longer pose a credible public safety threat; (2) inmates who are mentally ill and who cannot receive treatment within a prison environment; (3) habituated individuals who have a probable chance for recovery; and (4) inmates who have demonstrated an ability to be released based upon an approved individual risk assessment. A reduction in the number of inmates that are housed by CDCR will have the same effect, i.e., a reduced need for prison housing at no cost to the State.
“Regretfully, this legislation will only add to the problem, not remedy it.”
Such are the decisions that will probably be made in our name today in Sacramento and our public policy priorities.