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Realignment in California comes at a time when the state's prison system is expensive and overcrowded; the response has been to reevaluate and reconfigure the way counties use state prisons. Based on an original historical analysis of state archival records from the late nineteenth and early twentieth centuries, as a well as a review of secondary historical accounts of California's prison system, I show that similar problems and policies were present at the state's founding: issues of expense, overcrowding, and the county-state relationship help to explain the origins, size, and shape of the California prison system. California's lack of money first drove it to try to house prisoners on the cheap, starting when it made county jails the state prison system by fiat, continuing through a decade of privatization and convict lease arrangements in San Quentin, and concluding with a state-administered system partly funded by prison labor. By the time the value of prison labor atrophied and the true costs of a nonremunerative prison system revealed itself, the state was locked into fiscal and administrative responsibility for prisoners. Along the way, however, state and local governments sought to pass carceral responsibilities—and their attendant expenses—from one level of government to another in a manner that resembles today's battles over Realignment.

Realignment in California comes at a time when the state's prison system is expensive and overcrowded; the response has been to reevaluate and reconfigure the way counties use state prisons. Based on an original historical analysis of state archival records from the late nineteenth and early twentieth centuries, as a well as a review of secondary historical accounts of California's prison system, I show that similar problems and policies were present at the state's founding: issues of expense, overcrowding, and the county-state relationship help to explain the origins, size, and shape of the California prison system. California's lack of money first drove it to try to house prisoners on the cheap, starting when it made county jails the state prison system by fiat, continuing through a decade of privatization and convict lease arrangements in San Quentin, and concluding with a state-administered system partly funded by prison labor. By the time the value of prison labor atrophied and the true costs of a nonremunerative prison system revealed itself, the state was locked into fiscal and administrative responsibility for prisoners. Along the way, however, state and local governments sought to pass carceral responsibilities—and their attendant expenses—from one level of government to another in a manner that resembles today's battles over Realignment.

Design thinking purports to take the methods of industrial and product design and apply them to social and political problems. One particularly intractable problem in California is its bloated penal code, which has expanded almost continuously over the past forty years. Since 1983, more than a dozen bills have been introduced in the CaliforniaLegislature to establish a sentencing commission. All have failed. In this paper I explore how design thinking might help frame our discussion of mass incarceration in general and sentencing commissions in particular:what kinds of changes are possible within the foreseeable future, how wecan make any changes sustainable, and how we can make them appeal toa wider audience. I conclude that, without a broader base of supportamong policymakers, criminal justice officials, and the population at large, any sentencing commission, no matter how well it is designed, will fail. To build that support, then, I propose that California create a separate "prison tax" line item on state tax returns indicating the proportional amount a taxpayer must contribute to support the state prison system. Putting the cost of prisons in front of taxpayers right before they write their checks would distribute valuable information about the expense and overcrowding of prisons, as well as generate some fiscal impetus to control or reduce them.

The United States finds itself in an era where the cost of state prisons is both extremely large and politically salient. State prisons held approximately 1.3 million people in 2012, almost twice as many people as county jails and more than five times as many as federal prisons. The total cost of state corrections in2010 was $48.5 billion. In response, states nationwide are now experimenting with ways to reduce their role in imprisonment. The United States Department of Justice's Bureau of Justice Assistance launched the Justice Reinvestment Initiative to promote policies that reduce prison populations; the seventeen states that have participated are expected to save up to $4.6 billion. Perhaps the most obvious example of a state prison depopulation policy is California's criminal justice realignment: under a new law, California's state prisons now accept only prisoners convicted of serious, violent, or sex offenses - other felons, even those sentenced to multiple years, must serve their time in local jails.

Local agencies drive criminal justice policy, but states pick up the tab for policy choices that result in state imprisonment. This distorts local policies and may actually contribute to increased state prison populations, since prison is effectively "free" to the local decisionmakers who send inmates there. This Article looks directly at the source of the "correctional free lunch" problem and proposes to end state funding for prisons. States would, instead, reallocate money spent on prisons to localities to use as they see fit — on enforcement, treatment, or even per-capita prison usage. This would allow localities to retain their decision-making autonomy, but it would internalize the costs of those decisions.

In the United States, states typically pay for prisons, even though the decisions that lead to prison admissions — arresting, charging, and sentencing — are made by local officials. The practice of state subsidies is relatively recent: there were no state prisons in the early part of the country's history, and even as state institutions began to be developed, they largely supported themselves financially, rendering the notion of subsidies moot. Given the political economy of local decision-making, local preferences are unlikely to result in optimally-sized state prison populations. This Article suggests that since state prison subsidies may not be desirable and are certainly not inevitable, it may be time for states to reconsider paying for prisons.

This Article reflects some of the insights from the Stanford Criminal Justice Center's (SCJC's) year-long project on data and operations integration in California's criminal justice system. Part I lays out some of the benefits of an integrated system as a means of illustrating why law enforcement agencies across the state are actively pursuing data integration. Part II discusses three organizational and political obstacles to creating an integrated system: defining what we mean by the criminal justice "system," drawing boundaries of relevant networks, and resolving tensions among state and local agencies with concurrent jurisdiction. Part III then discusses three ways in which integration might have far-reaching implications on criminal justice policies, processes, and principles: improving organizational learning, and isolating the goals of risk reduction and punishment.

In criminal cases, any fact which increases the maximum punishment must be found by a jury beyond a reasonable doubt. This rule, which comes from Apprendi v. New Jersey, looks to what facts do, not what they are called; in Justice Scalia's memorable turn of phrase, it applies whether the legislature has labeled operant facts "elements, enhancements, or Mary Jane." Civil statutes, however, can expose an individual to the same or greater deprivation of liberty on identical facts without needing to meet the beyond a reasonable doubt standard of proof. If Apprendi is, indeed, functional, why is it limited to formally criminal cases? Why does it not apply to all punishments, no matter whether they are called civil, criminal, or Mary Jane? One often-proposed answer is that Apprendi derives its holding exclusively from the Sixth Amendment, and the Sixth Amendment applies only to "criminal prosecutions." Apprendi is not, however, just a Sixth Amendment case. Its "beyond a reasonable doubt" requirement comes from a formally civil case, In re Winship, which itself explicitly rejected the idea that civil labels could insulate a state from the heightened standards of proof required under due process. Because part of Apprendi's rule comes from a civil case, I argue that Apprendi's application cannot, therefore, be limited on formal grounds to criminal cases. To determine the limits of Apprendi's application, one must instead return to the interests that both Winship and Apprendi identified as worthy of protection: the imposition of stigma and the deprivation of liberty. This Article proposes that stigma is the substantive concern that separates retribution from regulation, punishment from public safety. Using sociology's modified labeling theory, I provide a substantive definition of stigma and explore how a unified due process approach, with stigma as one of its concerns, might provide a more meaningful way to separate punishment from risk management. This approach would move judicial discourse away from empty, taxonomic arguments about legislative labels towards an examination of the effects laws have on the lives of those subjected to them, a conversation which would more accurately and comprehensively address the values and interests at the heart of the justice system. It would also provide some judicial oversight of so-called collateral consequences, which use formally civil statutes to impose significant liberty restrictions based on predicate criminal behavior. This Article examines the specific example of civil commitments for Sexually Violent Predators (SVPs), but the arguments also apply to any civil restrictions placed on offenders or ex-offenders. NOTE: This article's original title was Civil, Criminal, or Mary Jane: Stigma, Legislative Labels, and the Civil Case at the Heart of Criminal Procedure. I mention that only to say that if you've followed a citation to that article, you're in the right place.