As long as California's prison population keeps growing, the state has to provide more prison facilities. In his "State of the State" address, Governor Arnold Schwarzenegger called for the construction of two new prisons to provide space for 83,000 new prisoners over the next ten years. The governor declared, "We must keep the people safe. I say build it."

The California Correctional Peace Officers Association (the prison guards' union) also advocates building two new prisons. Assembly Speaker Fabian Núñez has initiated legislation (AB2902) to issue bonds to pay for the expansion of California's prisons. These bonds would not require voter approval.

The state's prisons are indeed crammed to over capacity. The Department of Corrections has reported that the 33 state prisons are overcrowded by 188 percent. Some inmates have to sleep in hallways, gyms, and classrooms. Overcrowding in prisons makes prisoners more frustrated, inducing greater violence. Prisoners join gangs for protection, and the gangs threaten the staff. Crowding also spreads disease. Already overburdened, the state's prison medical system was placed in federal receivership in 2005.

California's spending for prisons this year will already be greater than $8 billion to confine over 170,000 prisoners. State spending on prisons has zoomed by 65 percent during the past three years. With the state budget already in deep deficit, more bonds for more prisons will increase the state's interest payments, which eventually have to be paid from taxes.

The alternative to an increase in this public expense is to reduce the prison population. One reason for the growth of the prison population has been the "Three Strikes" law and mandatory sentencing guidelines. Such rigid sentencing requirements imprison criminals whose third crime is not proportional to the punishment. The discretion of judges can be faulty, but rigidity is not an effective remedy, as it creates its own injustice and social costs. A reform of these sentencing rules would reduce the prison population. Also, as suggested by the prison guards' union, the state could have an early release for prisoners convicted of nonviolent crimes.

Another way to reduce the prison population is to reform the parole system—to develop alternatives to prison for the thousands of parolees who violate conditions of parole, often for minor technical violations.

These reforms would help, but they do not confront the fundamental problem with California's criminal law: It turns victimless acts into crimes. A marijuana grower and user who does not drive under the influence of mind-altering substances does not harm others. He or she is no more a threat to society than a person who legally consumes alcohol. Decriminalization would eliminate the expense of catching, trying, and incarcerating drug makers and users and would also reduce thefts by addicts.

Other victimless acts that have been criminalized by California state and local law include prostitution, gambling, and nudity. In 2005, some women removed their tops in a political protest called "Breasts not Bombs" in Sacramento. The California Highway Patrol warned that baring their breasts could result in their arrest and inclusion in the state's list of sex offenders. Officials at the Sacramento County district attorney's office also pondered whether to list the women as sex offenders. The D.A. did not file charges, but the threat to do so puts women in California at a risk of being put in prison and listed as sex offenders just for going topless even as a political protest. Does this law keep the public safe?

Drug use, prostitution, and gambling are crimes only because they offend the cultural values and beliefs of some persons. Yet there are many offensive acts and depictions, such as violence and T-shirts with crude messages, that are not crimes. In a truly free society, speech that is displeasing is nevertheless permitted, as the test of liberty is the tolerance of acts that some find disagreeable. If we truly want liberty, we have to tolerate activities that we may find disgusting but that do not involve force or fraud.

The decriminalization of these acts would reduce the prison population and also free up police resources to focus on theft and violent crimes. The governor well said that we must keep the people safe. This goal can be accomplished better by criminalizing only acts that coercively harm others. Californians should tell their representatives, "Don't build it." Instead, release and don't arrest those who have committed only victimless acts.