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article imageOp-Ed: Why California should soon be sending fewer people to prison

By Karla Lant     Oct 6, 2014 in Politics
Sacramento - Proposition 47 on California's November ballot would scale back California's “three-strikes” crime law, the harshest of these laws in the nation, and many commentators believe it will pass. This is a worthy initiative and deserves a "yes" vote.
A Public Policy Institute of California poll from September indicated that 62 percent of voters support the initiative, while only 25 percent were opposed.
California has had the harshest “three-strikes” crime law in the country for 20 years, but it seems like that might soon change. The original three-strikes law, passed in the wake of the kidnap and murder of the child Polly Klass by a parolee, sentenced all repeat felons to 25 years to life in prison. This sentence was the law, no matter how minor that third offense (not to mention the first two) might be.
This led to some bizarre stories of prison “lifers” over the years, including those actual cases in which the “third strike” triggering a life sentence was handed down for stealing a single piece of pizza, or four cookies, or even multiple sentences of 25 years to life for possession of drugs or stealing nine childrens' videotapes. Free Willy, indeed.
While some of the most petty of those cases have now been dispatched of, offenders are still in danger of unfairly harsh sentencing in California.
History of Three-Strikes in California
Although the law was sold as a solution for violence in the streets and in homes, the results of the nation's toughest three-strikes law have not lived up to that promise.
California became one of the battlegrounds for fighting racial disparities in sentencing, primarily because such disparities became so pronounced after the 1994 law's passage. As of September 2011 the California Department of Corrections and Rehabilitation indicated that 45.5 percent of the state’s 8,813 inmates incarcerated as “three-strikers” were black. Another 25.7 percent of inmates were Hispanic, making California’s three-strikes prison population 71.2 percent brown as of 2011.
The state’s prison population blew up to twice the size its prison system was designed to handle in the space of just ten years.
The 2011 changes to public safety programs caused a sizable move of lower-level offenders from state prisons to county jails — because there was no other place for them to go. This wasn't enough, however, because the U.S. Supreme Court has since held in Brown v. Plata (2011) that the overcrowding burdening prisons in the state of California is unconstitutional. As a result, California is federally mandated to reduce state prison overcrowding drastically. What would that significant reduction mean? That the prisons were housing “only” 137.5 percent of their capacity by February 2016 instead of the current 140 percent. By August 2014, the prison population in California was 115,972, along with another 8,803 inmates who must be housed out of state.
In the years that followed, various actions by courts and voters alike have attempted to bring back some notion of discretion and flexibility to the law, but without the impact needed. In 2000, voters passed Proposition 36, which allowed a drug treatment and probation option for some repeat offenders otherwise subject to three-strikes. Ten years ago in 2004, Proposition 66 would have allowed for a three-strikes life sentence only if the third conviction was violent or serious; unfortunately, it failed. In 2011 Assembly Bill (AB) 109 (“Realignment”) was passed. This law mandated the transfer of individuals sentenced to non-serious, nonviolent, or non-sex offenses to county jails and out of the state facilities.
Finally, in 2012 Proposition 36 passed, allowing for resentencing for some three-strike inmates with third offenses which were neither serious nor violent; it passed with 69 percent of the vote. The passage of this law in 2012 made somewhere in the neighborhood of 3,000 convicted felons doing life for petty third strikes to apply for reduced sentences. As of August 2014, 1,852 of them have been released in accordance with their new sentences.
Current Movement to Repeal Three-Strikes Law
Proposition 47 is part of a broader national reappraisal of mass incarceration. Its advocates include people from a wide swath of California society, including the more liberal voters you might expect, but some you might not. Other advocates include several district attorneys headed by George Gascón, the San Francisco district attorney and a former police chief. Perhaps an even more surprising ally has been a Malibu businessman and philanthropist who self-identifies as an evangelical conservative: B. Wayne Hughes Jr. has donated more than $1 million to the campaign and identifies it as “a moral and ethical issue.”
According to Mr. Hughes in a recent interview: “This is a model that doesn’t work. For the $62,000 cost of a year in prison, you can send three kids to college,” he said. “But for me, it’s not just about the money, it’s about our fellow citizens who are hurting.”
Mr. Hughes co-authored an op-ed in The Los Angeles Times with Newt Gingrich urging citizens to vote yes.
“Law enforcement has been on an incarceration binge for 30 years, and it hasn’t worked,” said district attorney Gascón. In particular, for the many nonviolent offenders with mental health and/or substance abuse problems, “Incarceration doesn’t fix the problem.”
Other supporters raised more than $4 million in support of Proposition 47 as of last week, about half of which was used to get the measure on the ballot. Among larger donors were the Open Society Policy Center; Reed Hastings, Netflix's founder; and Sean Parker, the former president of Facebook. In contrast, the opposition spent less than $300,000, mostly donated by a law enforcement officers’ association. Another important supporter is victims' advocate Dionne Wilson, whose husband, Nels Niemi, a San Leandro police Officer, was shot to death in the line of duty in 2005.
Darrell Steinberg, the Democratic president pro tem of the State Senate, look at the September poll numbers as proof that the public is ready to take a big step in this debate — much more so than are legislators, which is why a ballot initiative is necessary.
“People overwhelmingly say that we need to distinguish between violent criminals who belong in prison, and those who could serve their sentences in a much more cost-effective way for the taxpayers,” said Mr. Steinberg.
The Democratic Party of California supports Proposition while the state's Republican Party opposes it. Conspicuously absent from the debate thus far have been California's highest-ranking Democrats, Governor Jerry Brown and Attorney General Kamala Harris. Both are seeking reelection this term, and neither have taken positions on Proposition 47.
Opposition to Proposition 47
Law enforcement officials, including most of the state's district attorneys and the association of police chiefs, have been the strongest opponents to Proposition 47. The association of police chiefs calls it “a dangerous and radical package” that will “endanger Californians.”
Shelley Zimmerman, the chief of police in San Diego, is one of the most vocal opponents.
“Virtually all of law enforcement is opposed,” Chief Zimmerman said. “It’s virtually a get-out-of-jail-free card” for 10,000 felons, many with violent histories.
Alameda County District Attorney Nancy O’Malley says that if Proposition 47 passes, drug defendants will lose their incentive to gain treatment, and thieves will stop paying court-ordered restitution. Her reasoning is that a brief jail sentence or none at all leaves a consequence of a refusal too weak. O’Malley also says that certain crimes that would become misdemeanors under Proposition 47 are too serious to treat so lightly, citing possession of a “date rape” drug and theft of a handgun as examples.
However, Mr. Gascón clarifies that the law will not apply to people with violent records, and that they will not be released. He also points out that other felony laws make offenses like possessing illegal weapons and the use of date-rape drugs in sexual assaults chargeable as felonies regardless of prior offenses or Proposition 47.
Many experts from around the nation point out that even if Proposition 47 becomes law, California will still have harsher criminal penalties than many states, including some that are politically conservative. According to Adam Gelb, director of the Public Safety Performance Project of the Pew Charitable Trusts, other states have reformed the law to achieve prison cuts without a resulting increase in crime. Gelb cites the states of Mississippi and South Carolina as recent examples: both states raised the dollar threshold for theft or forgery felonies without negative impact on the community.
The benefit here won't only be felt by offenders and their families; proponents of the law have a financial motivation as well. The projected savings to the California government would amount to as much as a few hundred million dollars per year. According to the law, those saved funds would be deposited into the “Safe Neighborhoods and Schools Fund,” earmarked for crime prevention spending: 65 percent for mental health and drug treatment, 25 percent for reducing school dropouts, and 10 percent for trauma recovery centers for crime victims. The state legislative analyst also projects that California counties will save several hundred million dollars annually if Proposition 47 passes.
Why Vote for Proposition 47?
California voters have the right and responsibility to manage the state’s policies on crime and punishment, especially if the legislature won't. Voters passed the law in the first place, and now they have the power to get rid of it.
In the space of 40 years Californians went from the authorization and expansion of the death penalty to its near repeal in 2012. They passed the nation’s first “three strikes’’ law in 1994 and, since that time, have moved to mitigate against those effects, especially in drug cases and petty offense cases. Voters can and do change their minds, and they don't need to wait for lawmakers who might have overly political worries clouding their judgment.
Proposition 47 refocuses law enforcement resources on violent, serious crime. Despite the expressed concerns of some overly histrionic commentators, it does keeps rapists, murderers, and child molesters in prison. It also maintains current laws for registered sex offenders and anyone with prior sex crimes convictions.
The law uses money currently being spent on incarceration to fund programs that we know are more effective. Mental health and drug treatment do work to lower crime rates and treat citizens with decency. The law would also help transition petty, nonviolent offenders back into productive society.
We know that these programs work based on our experience. The Stanford Three Strikes Project reports that offenders released early under Proposition 36 in 2012 have a far lower recidivism rate than the general rate of recidivism in California: 1.3 percent was the rate for these offenders compared to the 30 percent rate of all other inmates released during that time.
What Proposition 47 Actually Does
Proposition 47 mandates that petty misdemeanors like writing bad checks or possession of small amounts of drugs must be charged and sentenced as misdemeanors unless the offender has a history of sex offenses or violent crimes. The law would also allow current “three-strikers” serving for what becomes a misdemeanor to petition to be resentenced. The saved costs from incarceration and prosecution will be deposited into the Safe Neighborhoods fund described above.
While law enforcement officials like Chief Zimmerman are warning of “the release of thousands of dangerous inmates” and a resulting crime wave, these concerns are not based in fact. Proposition 47's resentencing provision is not an automatic release; resentencing means that a court reassesses the case in light of the new law. Also, the offenders impacted are not “dangerous”; they have been convicted of petty crimes.
The specifics of the law include:
Moving toward misdemeanors. Offenders with “non-serious, nonviolent crimes,” will be prosecuted and sentenced for misdemeanors instead of felonies for unless they have prior convictions for murder, rape, certain sex offenses, or certain gun crimes.
The following offenses would require misdemeanor sentencing instead of felony sentencing under the new law:
*Property crimes where the value of property stolen does not exceed $950, including: forgery, fraud, grand theft, receiving stolen property, shoplifting, and writing a bad check.
*Personal use of most illegal drugs
Resentencing. Resentencing will be available for those serving a prison sentences for any offenses that are reduced to misdemeanors: about 10,000 inmates would be eligible. This must involve a “thorough review” of criminal history and risk assessment.
Funding. The Safe Neighborhoods and Schools Fund would receive appropriations based on savings, probably from $150 million to $250 million per year. It would then use the funds as follows: 65 percent to the Board of State and Community Correction, 25 percent to the Department of Education, and 10 percent to the Victim Compensation and Government Claims Board.
This opinion article was written by an independent writer. The opinions and views expressed herein are those of the author and are not necessarily intended to reflect those of
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