Criminal justice reform rolls on in California, much to the chagrin of police leaders

Frank Stoltze
KPCC
November 11, 2016

Another defeat at the ballot box this week for California law enforcement leaders. For months, many police chiefs, sheriffs and prosecutors urged voters to reject Proposition 57, which will give thousands of state prisoners an early opportunity to be released.

Voters overwhelmingly approved the measure 63.59 percent to 36.41 percent.

The passage of Proposition 57 is only the latest measure to roll back the policies of the 1980s and 90s when crime rates were much higher than they are today.

In 2014, voters approved Proposition 47, which reduced certain drug possession felonies to misdemeanors. It also made petty theft, receiving stolen property and writing bad checks (under $950) misdemeanors instead of felonies.

In 2012 voters approved Proposition 36, which changed the three strikes law to say the third strike had to be a serious or violent felony to land you a 25-years-t0-life sentence — not stealing a piece of pizza as it did in one case.

In 2011, the state Legislature approved measures that sent new non-violent, non-serious, and non-sexual offenders to local jails instead of state prison and had them supervised by local probation departments instead of parole. The move sent thousands of inmates home early, helping to satisfy a federal judge’s order to reduce overcrowding.

Under Proposition 57, which passed Tuesday, felons can apply for parole after serving time for their primary offense. For example, first degree residential burglary carries a sentence of two, four or six years in state prison. But if you brandished a gun during the burglary, you could get a 10 year “enhancement.”

Right now, inmates must wait until three-quarters of their entire sentence is served before being eligible for parole. Let’s say the burglar got six years plus the 10-year enhancement for the gun. He would have to spend 12 years behind bars before going before the parole board to try to show he is reformed and no longer a threat to society.

Proposition 57 allows him to go to the board after he serves six years for the original crime.

Governor Brown was Prop 57's biggest proponent, arguing it would reduce prison overcrowding — something ordered by a federal judge — by allowing reformed prisoners out earlier.

Opponents in law enforcement said the enhancements are there for a reason — to deter certain behavior like carrying a gun.

“We opposed it as aggressively as we could,” said Los Angeles County Sheriff Jim McDonnell. “What it said it did is not what we believed it would do at all.”

Brown said the measure applied only to non-violent offenders, but McDonnell said drive-by shootings, assault with a deadly weapon and lewd acts on a child are considered non-violent under the measure.

“Those things in my mind are all very violent,” the sheriff said.

McDonnell argued the title of 57 was misleading and may have lulled voters into supporting it. The proposition was entitled the California Parole for Non-Violent Criminals and Juvenile Court Trial Requirements Initiative.

He argued the same for Proposition 47, which was titled The Reduced Penalties for some Crimes Initiative.

Many law enforcement leaders are sounding the alarm about voters’ willingness to relax criminal penalties.

“This is unprecedented,” said San Bernardino County District Attorney Michael Ramos, who is also president of the National District Attorney’s Association.

“We are making it easier and easier on criminals who are committing felonies,” he said.

Ramos and McDonnell in part blame a rising crime rate on Proposition 47, which resulted in the release of thousands of prisoners convicted of petty theft or drug possession.

Meanwhile, criminal justice advocates are thrilled that Prop 57 passed.

“This is just an exciting time in California,” said Lenore Anderson of Californians for Safety and Justice, which supported the measure. “This is a state that really is leading the nation in criminal justice innovation.”

Anderson pointed out there is no data to back up the reasons behind the rise in crime. She said the state and counties need to begin better tracking how Proposition 47 is working: the measure was supposed to shift any cost savings from lower incarceration rates to rehabilitation programs.

The idea behind these measures, she said, is to end mass incarceration of mostly black and Latino men for relatively minor crimes and provide them opportunities to leave the life of crime. Recidivism rates for criminals remains above 60 percent.

“We need to take it further than that,” she added.

Ending the practice at local jails of demanding bail from low income inmates accused of nonviolent crimes is another reform that could reduce overcrowding, said Anderson. Thousands of poor people are languishing in local lockups awaiting trial merely because they can’t afford bail.

Others suggested the state should roll back sentencing enhancements that can double and triple prison terms.

Many perceive these enhancements as arbitrary and overly severe, said Robert Weisberg, professor of criminal law at Stanford University. For example, the “10-20-life” gun enhancement adds 10 years for brandishing a gun, 20 years for firing a gun, and a life sentence for shooting someone in the commission of a crime. A robber who fires a warning shot, could face another 20 years in prison beyond the robbery sentence.

Sheriff McDonnell argued that changing these penalties will bring higher crime rates. 

“As we move forward, I think we’ll start to see some quantifiable evidence that some of the strategies here are not what they thought they would be,” he told KPCC. 

The sheriff also warned that relaxing penalties often results in someone who would have been locked up committing a heinous crime. That then results in a big public reaction and later a harsher — and sometimes irrational — law. 

Proposition 57 also shifted the decision to place a juvenile accused of a serious crime in adult court from prosecutors to judges.

“That is very significant and an exceptionally welcome change,” said Chris Hawthorne, director of the Juvenile Innocence and Fair Sentencing Clinic at Loyola Law School. He pointed to U.S. Supreme Court cases that found that children should be treated differently even when they commit serious offenses.

“Children are fundamentally and mentally different than adults and therefore they are much more capable of change over the next decade,” he said. “We need to recognize that.”

He said prosecutors have been too anxious to try minors in adult court, where judges and jurors are under no obligation to consider they are children, and minor defendants face adult size sentences.

Now, judges will consider the facts and circumstances of the crime, the minor's mental development, what they are dealing with at home, their level of education, and other factors in considering whether the minor should be sent to adult court.

It's another step in California's move toward a more fair criminal justice system, said Hawthorne.

"There is definitely a march toward criminal justice reform in California — and it's the result of an equally prolonged and significant march towards over-incarceration in the mid 1980s."

"We are basically undoing what we did," he said.