It’s been a dramatic few years for California’s criminal justice system — voters and lawmakers have approved a slew of changes since 2011, including measures that softened the state’s harsh three strikes law and shrunk penalties for nonviolent crimes.
Now, advocates pushing those types of reforms are hoping that recent comments by Gov. Jerry Brown have opened the door to even more sweeping changes. They’re optimistic that state leaders may be willing to rethink California’s entire criminal sentencing structure, which last underwent an overhaul when Brown was in the statehouse three decades ago.
Adam Kruggel is director of organizing for PICO California, an interfaith network that helped push 2015’s Proposition 47, which made most nonviolent drug crimes misdemeanors instead of felonies and has helped shrink jail populations around the state. He said faith leaders hope 2016 will be a “year of mercy” in the Golden State.
“I think we are seeing an unprecedented shift in public opinion and the willingness to shift the landscape of criminal justice,” Kruggel said. “We think we really need to re-evaluate what is the purpose of our criminal justice system, what is the purpose of sentencing. And it should be public safety, and it should at its heart focus on the restoration of community, the restoration of the victim and the restoration of the offender.”
Brown pushed a policy known as prison realignment in 2011, a major change that shifted many nonviolent offenders’ sentences from overcrowded state prisons to county jails.
Kruggel said advocates of reform have hope not only because of Brown’s leadership in 2011, but also because of the governor’s rhetoric over the past year — first in his State of the State address, then this fall in several messages accompanying his veto of bills that sought to create new crimes.
“Over the last several decades, California’s criminal code has grown to more than 5,000 separate provisions, covering almost every conceivable form of human misbehavior. During the same period, our jail and prison populations have exploded,” the governor wrote in an Oct. 3 veto message.
“Before we keep going down this road, I think we should pause and reflect on how our system of criminal justice could be made more human, more just and more cost-effective.”
But what exactly that means would be largely up to lawmakers and voters.
Brown was governor the last time the state made major changes to the way it handed down punishment for criminal offenders. In 1977, California enacted “determinate sentencing,” offering judges three options for each crime — a low, medium or high number of years.
It was seen at the time as a way to make things more transparent and fair, says Barry Krisberg, a criminal justice expert and visiting scholar at UC Berkeley’s Institute for the Study of Societal Issues.
At the time, sentences were so broad that victims and offenders left the courtroom with no idea of how long someone would actually serve — that decision was left up to a parole board, Krisberg says.
“The typical sentence back then was a minimum term to a life sentence,” he said. “There was a lot of concern as to the arbitrary and capricious nature of those parole board hearings.”
But since then, the Legislature and voters piled on enhancements — tougher penalties that allow a prosecutor to seek more prison time for each crime, Krisberg said.
That has left district attorneys with a lot of power to pressure defendants into plea deals, he argued.
“Ninety-five percent of cases are resolved through plea bargains. The television drama where the person is convicted in a courtroom and a judge pronounces a sentence is pretty rare,” Krisberg said. “The big trend here has been a significant and dramatic increase in the power of district attorneys in the system.”
That’s what happened to Tamisha Walker, who pleaded guilty to arson in 2007. The plea left her with a strike on her record and a felony that made it impossible to find traditional work — but Walker says she felt forced to take the plea deal.
“I felt like I had a good chance of beating the charges,” she said. But then her public defender told her the minimum term for the charge was 10 years. “And I was like, if that’s the minimum, hell, what’s the maximum — this is the first offense here? It was really scary.”
Now Walker works at a faith-based organization in Contra Costa, working to improve life for people like her who used to be behind bars.
Activists like her hope 2016 might be the year that Sacramento is finally ready to rethink those harsh minimums — particularly because one of the state’s major determinate sentencing laws expires in 2017.
Most prosecutors don’t think the sentencing system needs an overhaul but they’re open to the conversation, said Patrick McGrath, president of the California District Attorneys Association.
“If you’re not at the table, you are on the menu,” McGrath said in explaining the position of prosecutors.
DAs may not like all the criminal justice changes of recent years, but McGrath said they have to follow the law, and need to listen to what the public — their client — is saying.
“Things go back and forth like a pendulum, and right now our client seems to be saying what they want to do is they want to emphasize rehabilitation, and they want to move away from punishment,” he said. “I don’t think I can really classify it as good or bad. It is what it is.”
Exactly what any reform would look like is still up for debate. Even if there’s support in the Legislature, many sentencing enhancements would need to be changed by voters.
Krisberg said the best way to ensure a fair, smart sentencing structure would be to create a sentencing commission — something that, in the past, prosecutors have fought bitterly.
The more likely scenario, Krisberg says, is incremental changes like the ones we’ve already seen at the Capitol and ballot box.
“I think the most important thing for me is moving back towards a system of sentencing people, not penal code numbers.”
But, he warned, it remains to be seen whether lawmakers are willing to do even that.