Declaration of James Austin, Ph.D. - covID 19 Emer. Motion - Coleman V Newsom

Case 2:90-cv-00520-KJM-DB Document 6560 Filed 04/01/20 Page 1 of 6
1 DONALD SPECTER – 083925 MICHAEL W. BIEN – 096891

STEVEN FAMA – 099641 ERNEST GALVAN – 196065
2 ALISON HARDY – 135966 LISA ELLS – 243657
SARA NORMAN – 189536 JESSICA WINTER – 294237
3 RITA LOMIO – 254501 MARC J. SHINN-KRANTZ – 312968
MARGOT MENDELSON – 268583 CARA E. TRAPANI – 313411
4 PRISON LAW OFFICE ROSEN BIEN
1917 Fifth Street GALVAN & GRUNFELD LLP
5 Berkeley, California 94710-1916 101 Mission Street, Sixth Floor
Telephone: (510) 280-2621 San Francisco, California 94105-1738
6 Telephone: (415) 433-6830
7 Attorneys for Plaintiffs
8
UNITED STATES DISTRICT COURTS
9 EASTERN DISTRICT OF CALIFORNIA
10 AND NORTHERN DISTRICT OF CALIFORNIA
11 UNITED STATES DISTRICT COURT COMPOSED OF THREE JUDGES
PURSUANT TO SECTION 2284, TITLE 28 UNITED STATES CODE
12
RALPH COLEMAN, et al., Case No. 2:90-CV-00520-KJM-DB
13
Plaintiffs, THREE JUDGE COURT
14
v.
15
GAVIN NEWSOM, et al.,
16
Defendants.
17 MARCIANO PLATA, et al., Case No. C01-1351 JST
18 Plaintiffs, THREE JUDGE COURT
19 v.
20 GAVIN NEWSOM, DECLARATION OF JAMES AUSTIN
PH.D. IN SUPPORT OF PLAINTIFFS’
21 REPLY BRIEF
Defendants.
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24
25
26
27
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[3521253.4] DECLARATION OF JAMES AUSTIN PH.D. IN SUPPORT OF PLAINTIFFS’ REPLY BRIEF

1 I, JAMES AUSTIN PH.D., declare:

2 1. I am the Senior Policy Analyst for the JFA Institute, a nationally recognized
3 criminal justice and corrections research organization. I have personal knowledge of the
4 matters set forth herein, and if called as a witness, I could and would competently so
5 testify. I make this declaration in support of Plaintiffs’ reply brief on their Emergency
6 Motion.
7 2. I received my Ph.D. in sociology from the University of California at Davis
8 in 1980. I am currently the President of JFA Institute, a corrections consulting firm. Prior
9 to that, I was the Director of the Institute of Crime, Justice and Corrections at the George
10 Washington University, and Executive Vice President for the National Council on Crime
11 and Delinquency. I began my career in corrections with the Illinois Department of
12 Corrections in 1970 at Stateville Penitentiary.
13 3. I have implemented inmate classification and risk assessment systems for
14 juvenile and adult custody in over 30 local and state correctional systems.
15 4. I have implemented parole guidelines and related risk assessment systems in
16 a number of states and local jurisdictions including most recently Maryland, Texas,
17 Arkansas, Kentucky, Illinois, South Carolina, Charleston SC, and New Orleans, Louisiana.
18 5. I have assisted a number of states and local jail systems in identifying
19 policies and procedures that have resulted in a safe reduction in their prison and jail
20 systems.
21 6. I correctly argued that the CDCR prison population could be safely reduced
22 from over 170,000 inmates in 2007 to 120,000 without increasing crime rates.
23 7. I was the primary author for the National Institute of Corrections (NIC)
24 manuscript on Objective Prison and Jail Classification Systems, which provides details on
25 the same types of classification systems employed by the California Department of
26 Corrections.
27 8. I have served as the project director of the corrections options technical
28 assistance program of the Bureau of Justice Assistance (BJA), an arm of the U.S.
1
1 Department of Justice that provides a wide variety of assistance to local jails, probation,
2 parole, and prison systems.
3 9. In 1991, I was named by the American Correctional Association as its
4 recipient of the Peter P. Lejin's Research Award. In 1999, I received the Western Society
5 of Criminology Paul Tappin award for outstanding contributions in the field of
6 criminology. In 2009, I was the recipient of the Marguerite Q. Warren and Ted B. Palmer
7 Differential Intervention Award, American Society of Criminology, Corrections and
8 Sentencing Division.
9 10. In 2006, I was appointed to the Expert Panel on Adult Offender and
10 Recidivism Reduction Programming, California Department of Corrections and
11 Rehabilitation.
12 11. The issue to be addressed is whether the current CDCR prison population
13 can be safely reduced for the purpose of lowering the risk of infection from the COVID-19
14 virus for inmates and staff.
15 12. Regarding the question of whether prison populations can be safely lowered
16 without increasing the crime rates or recidivism rates, the scientific answer is clearly yes.
17 As shown in Table 1, a number of states (including California) have lowered both their
18 prison populations and crime rates.
19 Table 1. Prison Population and Crime Rate Reductions in New York, California,
New Jersey, and Maryland
20 NY CA NJ MD
21 Year Reforms Initiated 1999 2006 1999 2008
Prison Population Before Reform 72,899 175,512 31,493 23,239
22 2017 Prison Population 49,461 131,039 19,585 19,367
23 Prison Reduction -23,438 -44,473 -11,908 -3,872
% Reduction -32% -25% -38% -17%
24 UCR Crime Rate Before Reform 3,279 3,743 3,400 4,126
25 2017 Crime Rate 1,871 2,946 1,785 2,722
Crime Rate Reduction -1,408 -797 -1,615 1,404
26 % Reduction -43% -21% -48% -34%
Sources: Bureau of Justice Statistics, Prisoners Series and UCR Crime in the United States series.
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2
1 13. A closer look at California shows that all forms of corrections have declined
2 since 2007 as a number of reforms have been implemented (largely realignment and
3 Propositions 47 and 57). At the same time, crime rates per 100,000 population have
4 declined (Table 2).
5 14. This is not because reductions in correctional populations “caused” crime
6 rates to decline. Rather we now know that crime rates and the rates of incarceration are
7 largely unrelated to one another. Crime rates are more associated with the far more
8 powerful demographic (aging population, lower and delayed birth rates, smaller
9 households, declining juvenile arrests) and economic (lower interest rates, low inflation)
10 factors that dwarf the impact of incarceration.1
11 Table 2. Changes in California Corrections Populations and Crime Rates
2007-2019
12
CDCR Felony Grand Crime Violent
Year Jail Parole
13 Prison Probation Totals Rates Rates
14 2007 173,312 83,184 126,330 269,384 652,210 3,556 523

2008 171,085 82,397 125,097 269,023 647,602 3,461 506
15 2009 168,830 80,866 111,202 266,249 627,147 3,204 473
16 2010 162,821 73,445 94,748 255,006 586,020 3,070 440
2011 160,774 71,293 90,813 247,770 570,650 2,995 411
17 2012 133,768 80,136 69,453 249,173 532,530 3,185 424
18 2013 132,911 82,019 51,300 254,106 520,336 3,054 403
2014 134,433 82,896 44,499 244,122 505,950 2,838 396
19
2015 127,421 73,045 45,473 221,243 467,182 3,056 428
20 2016 129,416 73,174 43,814 190,686 437,090 2,995 445
2017 129,192 73,548 45,261 183,623 431,624 2,959 453
21
2018 124,837 74,377 47,370 166745 413,329 2,828 447
22 2019 124,027 73047 51923 NA NA NA NA
Change ‐49,285 ‐8,807 ‐78,960 ‐102,639 ‐238,881 ‐728 ‐76
23
24 15. Ironically, these reductions in the CDCR population have created a larger
25 pool of inmates who are assessed as low risk to recidivate. Based on a 2009 data file I
26
1
Austin, James, Todd Clear, and Richard Rosenfield. 2019. Explaining the Past and
27 Projecting Future Crime Rates: Washington, DC: JFA Institute.
28
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1 received from the CDCR, there were approximately 164,000 inmates who were scored on
2 the Static Risk Assessment instrument. Of that population, 35% were scored as Level 1 or
3 Low Risk. The most recent publication by the CDCR shows that the percentage scored as
4 Low Risk has increased to 50% even as the prison population has declined by about 50,000
5 inmates.
6 16. The declining prison population and the increased percentage of low risk
7 inmates is the result of Realignment, Proposition 47 and Proposition 57 targeting prisoners
8 with non-violent and drug possession crimes, which tend to have higher recidivism rates,
9 and providing credits for participation in certain programs.
10 17. The CDCR’s Static Risk Assessment (CSRA) instrument is a statistically
11 valid instrument that incorporates the nature of the commitment offense, including whether
12 an individual has been convicted of a violent crime.
13 18. Mr. Green in his declaration makes the analytic mistake of associating a
14 current violence conviction as a predictor of future recidivism or future violent crimes. The
15 relationship is just the opposite. CDCR’s own data show that people convicted of violent
16 crimes have significantly lower recidivism rates.
17 19. The CDCR’s own publication on recidivism shows an inverse relationship
18 between the severity of the sentencing offense and recidivism rates.2 Specifically,
19 prisoners with a conviction for violent crimes have reconviction rates that are about half
20 the rates of the prisoners convicted of non-violent crimes. 3
21 20. Further, for all of California’s released prisoners, only 7% are convicted for
22 violent crime after release.4
23
2
CDCR Recidivism Report for Offenders Released From The California Department Of
24 Corrections And Rehabilitation In Fiscal Year 2014-15. Figure 12, p. 23
25 3 CDCR Recidivism Report For Offenders Released From The California Department Of
26 Corrections And Rehabilitation In Fiscal Year 2014-15. Figure 12, p. 23.
4
CDCR Recidivism Report For Offenders Released From The California Department Of
27 Corrections And Rehabilitation In Fiscal Year 2014-15. Page 10.
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1 21. The National Bureau of Justice Statistics’ recidivism studies, which

2 California participates in, shows that released prisoners convicted of violent crimes have
3 equivalent re-arrest rates with 2/3rds not being arrested for a violent crime.5 The
4 percentage convicted of a violent crime is even lower.
5 22. California prisoners convicted of violent crimes who have longer lengths of
6 stay have significantly lower rates of recidivism than other prisoners largely because they
7 are older, which lowers their risk of recidivism.6
8 23. These facts also explain why the overall CDCR recidivism rates (re-arrest,
9 reconviction, and re-incarceration) have all significantly declined since FY 2010-11.7
10 24. In summary, California has reduced its entire correctional system and at the
11 same time has lowered its prisoner recidivism rates and crime rates. And, the current
12 CDCR population now poses less of a threat to public safety as compared to the prisoner
13 population that existed in 2009.
14 25. Significant reductions in the current prison population can be quickly
15 achieved without increasing recidivism or crime rates.
16 I declare under penalty of perjury under the laws of the United States of America
17 that the foregoing is true and correct, and that this declaration is executed at Camden,
18 Carolina this 1st day of April, 2020.
19
20 /s/ James Austin Ph.D.
JAMES AUSTIN PH.D.
21
22 5
Bureau of Justice Statistics. April 2014. Recidivism of Prisoners Released in 30 states in
23 2005: Patterns from 2005 to 2010, April 2014. Table 10, p. 9.
6
24 CDCR Recidivism Report for Offenders Released From The California Department Of
Corrections And Rehabilitation In Fiscal Year 2014-15. Appendix To The Recidivism
25 Report For Offenders Released From The California Department Of Corrections And
26 Rehabilitation In Fiscal Year 2014-15, Table 20, p. 44.
7
CDCR Recidivism Report For Offenders Released From The California Department Of
27 Corrections And Rehabilitation In Fiscal Year 2014-15. Figure 2, p. 3
28
5

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Case 2:90-cv-00520-KJM-DB Document 6560 Filed 04/01/20 Page 1 of 6

1 DONALD SPECTER – 083925 MICHAEL W. BIEN – 096891

[3521253.4] DECLARATION OF JAMES AUSTIN PH.D. IN SUPPORT OF PLAINTIFFS’ REPLY BRIEF

1 I, JAMES AUSTIN PH.D., declare:

14 2007 173,312 83,184 126,330 269,384 652,210 3,556 523

1 21. The National Bureau of Justice Statistics’ recidivism studies, which

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