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Crimes and Misdemeanors: California Reverses Course on Its “Lock ‘Em Up” Policy

November 13, 2014
by Michael Taylor
Photo of inmates in a crowded prison Photos such as this one by California Watch helped galvanize concerns about prison overcrowding.

For several thousand lucky prisoners now languishing in California’s jails and prisons, last week’s passage of Proposition 47 is an early Christmas present: A get-out-of-jail-free card.

Convicted of low-level drug crimes and minor thefts, they were looking at another year or two or maybe more before they’d see the light of a city street. Thousands of others, charged with similar offenses, were out on bail or awaiting trial and possible sentences of years in prison. In one fell swoop, Prop. 47 up-ended all that. In the past few days, slightly bewildered inmates have appeared before judges who waved a magic judicial wand, changed their existing felonies to misdemeanors, and told the former felons they were free to go.

The statewide ballot measure, for which supporters outspent opponents by a 20-to-1 margin, was approved by 58 percent of voters. It reduces many drug possession crimes from felonies to misdemeanors, and requires misdemeanor sentencing for crimes involving $950 or less, such as petty theft, writing or forging bad checks, or receiving stolen property. (There are exceptions if the accused has previous convictions for particularly heinous violent felonies.)

While nobody knows how Prop. 47 will work out, opinions are predictable—and passionate. Advocates saying low-level drug offenders will get the necessary treatment instead of clogging up the state’s critically overcrowded prisons. Critics warn it will let criminals off too easy and put public safety at risk.

Already the new law is “having a dramatic effect,” especially for people currently on felony probation for crimes that Prop. 47 has redefined as misdemeanors, says Alameda County Deputy Public Defender Jeff Chorney. “On the Wednesday after it passed, we saw three people get released. All were felony probationers who were facing new violations.” By Friday, six more inmates were released, and Chorney expects all affected clients there to be out by the end of the month.

“We had this in­cred­ible in­crease in in­car­cer­a­tion. It al­most looks like a rock­et ship.”

Statewide, the California Department of Corrections and Rehabilitation estimates 4,770 of its 136,045 state inmates will be eligible for release under Prop. 47.

So what led California, a state whose voters in recent decades stuck with a lock-’em-up attitude toward criminals, to embrace this approach?

Once upon a time, the state had a pretty low incarceration rate: From 1925 to about 1980, it burbled along at about 1 inmate per 1,000 citizens. But then the rate started skyrocketing: By the mid-2000s, it had risen 500 percent.

“We had this incredible increase in incarceration. It almost looks like a rocket ship,” UC Berkeley criminologist Barry Krisberg, who has written extensively about prisons, says of the period beginning in 1980. “We passed determinate sentencing. There was political pressure on the state legislature. There was a steady escalation of punishment. More conservative voices went to the ballot box and pushed through the Three Strikes law. We built 22 new prisons. That was the track we were on.”

But while legislators, afraid to be seen as soft on crime, continued to do little or nothing to stop this expensive express train of incarceration, the people of California began to recalibrate.

“The public is reading newspaper headlines about inmates dying, hearing stories of guards beating up inmates,” Krisberg says, and eventually, “there was no public support for prisons. They’re too expensive and costs are still rising. So 47 looks like a partial answer.”

Actually, federal court orders already had started forcing the state in that direction after the state’s prisons reached more than 200 percent of capacity. Three years ago, after the U.S. Supreme Court upheld an appellate court ruling that California reduce its prison population, the Legislature mandated that the state corrections department begin shifting prison inmates to county jails, as a way of alleviating overcrowding. Remember all those TV shots of orange-clad prisoners sleeping in three-tiered bunks crowded onto gymnasiums floors? It had its effect. As did the support of people you wouldn’t think would be supporting this kind of lefty-leaning measure. Consider this ballot argument for Prop. 47 from former GOP House Speaker Newt Gingrich:

“It makes no sense to send non-serious, nonviolent offenders to a place filled with hardened criminals and a poor record of rehabilitation—and still expect them to come out better than they went in. Studies show that placing low-risk offenders in prison makes them more dangerous when they are released.”

Yes, the pub­lic is still fear­ful, but there’s great­er re­cog­ni­tion that the United States is an out­lier in the use of pris­ons. We have the highest (in­car­cer­a­tion) rate in the world.”

It might seem odd for someone like Gingrich to align himself with a ballot measure that appears, on the surface, antithetical to the right wing’s way of thinking. But the explosion in prison building, incarceration rates and the waterfall of public money that goes along with all that (the California corrections’ department’s last budget was nearly $9 billion) has triggered a “spectacular change, politically,” according to Steve Raphael, a professor of public policy at UC Berkeley and an adjunct scholar at the Public Policy Institute of California. Conservatives such as Gingrich have come to see wholesale warehousing of low-level drug offenders as “socially costly, very expensive and something that causes a lot of social harm for families. Also, there’s a certain religious belief in redemption, in the moral belief of second chances,” Raphael says.

The first evidence of this shift appeared at the polls two years ago, when California voters passed Prop. 36 to ease up on penalties they had previously enacted under the Three Strikes law.

“There was a feeling that sentencing was unfair,” Raphael explains. “So the fact that we have two propositions in a row that are reforming sentencing downwards is kind of amazing. Yes, the public is still fearful, but there’s greater recognition that the United States is an outlier in the use of prisons. We have the highest (incarceration) rate in the world, and are so far beyond any other industrialized nation. There’s a general sense that this system has gotten too big, too expensive.”

Now that Prop. 47 is taking effect, what changes can we expect?

Inmate hands sticking out of bars in prison

Lenore Anderson, a former San Francisco prosecutor and chair of the Yes on Proposition 47 Campaign committee, says the concrete effect of the law will be to divert money to schools and treatment programs. The measure mandates that savings go to help fund schools, victim organizations, and mental health and drug counseling organizations. Estimates are that from $150 million to $250 million annually will flow into to the “Safe Neighborhoods and Schools Fund”—money that otherwise would have been spent processing people through the criminal justice system and storing them in prison, where the annual cost to house, feed and guard a prisoner is $62,396.

More important, perhaps, is what Anderson says is the retroactive aspect of Prop. 47: reclassification of a convicted felon’s record, wiping felonies from the books and replacing them with misdemeanors.

“You did your time, you’re out. Twenty years ago, you had a felony drug possession, which is on your record,” Anderson says. This felony conviction “comes with a lifetime set of consequences. You face barriers to employment and housing. There are numerous limitations regarding public assistance, like student loans. All this can limit a person’s ability to reintegrate into society.” With Prop. 47, people with old felonies that fall under the new law can fill out a form, go to court and have the record changed.

“By going back and changing the record from felony to misdemeanor,” she says, “you’re allowing them a chance to contribute more fully.”

But there is another significant—and much less discussed—consequence of Prop. 47.

“What 47 was all about was the infamous California ‘wobbler,’ ” says UC Berkeley law professor Franklin Zimring. A wobbler is an offense that can be prosecuted either as a felony or a misdemeanor, and it has long provided prosecutors one of the sharper tools in their toolbox. In California, as in many other states, wobblers allow for the negotiation of plea bargains. Prosecutors could threaten a suspect with a lengthy felony prison sentence, then swiftly dispose of the case with a guilty plea to a lesser sentence.

“Prosecutors love to plea bargain,” Zimring said. “Judges are no longer important in California criminal justice. They put rubber stamps on plea bargain outcomes in 93 percent of felony dispositions. Hegemony of prosecutors is tremendous, but 47 cuts back on that huge discretion.

“The important part of 47,” he concludes, “was its symbolic impact on prosecutorial power.”

Oth­ers worry about that the new law goes too easy on someone ar­res­ted for pos­sess­ing so-called “date rape” drugs, or for steal­ing a hand­gun, most of which re­tail be­low the $950 lim­it.

Among the prosecutors lamenting that loss—and contending that the new law leaves big loopholes for violent criminals—is District Attorney Steve Wagstaffe of San Mateo County, where Prop. 47 has already disposed of 79 cases. He offers an example: Someone who has a record of robbery, felony assault, stalking, kidnapping, human trafficking, major drug dealing or gang activity gets the benefit of the law because “when we get people like that, and they commit a small offense, we charge them with a felony, to try and protect the community.” If, however, the perpetrator’s prior conviction does not fall under Prop. 47’s specific list of serious violent crimes, then his seemingly violent criminal history has no bearing on new, minor offenses.

Wagstaffe also agrees that Prop. 47 is a blow to the world of plea bargaining, taking away from prosecutors a valuable bargaining chip. He mentioned the case of a 20-year addict, a woman he called “Heather,” who had been prosecuted on a serious drug charge. Given that her crime was a wobbler—it could go as a felony or a misdemeanor—the DA’s office made a deal with Heather: They threatened her with an 8-year prison sentence unless she went into a rehabilitation program and stayed there. She opted for rehab and now, 15 months later, is clean and sober. Under Prop. 47’s misdemeanor drug laws, Wagstaffe notes, the most a judge can do to get somebody into a rehab program is threaten a defendant with “30 to 60 days. So they’re back to doing drugs.”

Others worry about that the new law goes too easy on, for example, someone arrested for possessing so-called “date rape” drugs, or for stealing a handgun, most of which retail below the $950 limit.

“In the first six months of this year, in the city of San Diego we’ve had 115 guns that were stolen in burglaries,” San Diego Police Chief Shelley Zimmerman said in the campaign against the 47. “And I can tell you that people are not going to steal guns so they can add them to their gun collection. They steal them to commit crimes.”

Although the California Police Chiefs Association and California District Attorneys Association campaigned against Prop. 47, now that it is the law, “we’re going to make it work,” Wagstaffe says. “My job is to enforce the law, and we will.

“But I’m concerned. Like many, I fear we may ultimately see problems.”

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