The Message of California's Prop 47


The dramatic reductions in criminal sentencing approved by California voters this week represented another groundbreaking step in the movement to ease the “tough on crime” approach that has characterized the state—and the nation—for decades.

But will the passage of Proposition 47 have the game-changing impact on other states that some observers hope?

“The fact that it passed by such a wide margin [over 58 percent], sends a strong message to policymakers across the country that people are sick and tired of the old debate between treatment and punishment,” says Adam Gelb, director of the Pew Charitable Trusts Public Safety Performance Project (PSPP), which works with states around the country that are considering changes in sentencing laws.

“They now know that there are other solutions that will provide less crime at lower cost; (and) that will give policymakers across the country greater comfort in examining their own laws.”

But, as Gelb points out, several states have already traveled the same route over the past several years. Sentence-reduction legislation for drug and/or property offenses similar to Prop 47 has passed in Oregon, Mississippi, Georgia, South Carolina, Delaware, and Colorado.

In those states, Gelb notes, legislators drew on research and available data to support measures that have diverted “a significant number of lower-level drug offenders from prison.”

He adds: “These are states where legislators have decided that they want the focus to be on serious, violent offenders, and know that there are more effective, less expensive ways to handle the lower-level drug [and other non-violent] offenders.”

In March, for example, Mississippi passed a comprehensive sentencing reform bill that, among other things, lowers penalties for simple drug possession; raises the felony threshold for property crimes from $500 to $1,000 and “institutes presumptive probation for most property crimes under $1,000.”

In 2010, South Carolina passed a similar comprehensive bill providing eligibility for probation or a suspended sentence for first and second time drug offenses, and increasing the felony property-crime threshold from $1,000 to $2,000.

California's monetary threshold for prosecuting property and check crimes is set at $950, so in that respect Prop 47 is behind two deep-South, deeply red conservative states.

So, while Prop 47 is an astounding reversal in California, given the state's harsh sentencing realties over the decades, it's not necessarily a national pace-setter in sentencing reform. .

Nevertheless, the passage of Prop 47 is a national story.

$11 Billion Bill

California, after all, has made all the sentencing mistakes of the past 20 years—and made them big; saddling its taxpayers with an $11 billion annual bill for corrections, and an incarcerated population so large that a conservative U.S. Supreme Court declared the state's prison system unconstitutionally overcrowded. (The Court subsequently ordered a dramatic reduction in the number of prisoners that could be held in them.)

The impact of Prop 47 on the state's criminal justice system will be extraordinary.

Among the proposition's most important provisions is the de-felonization of drugs such as cocaine, heroin and methamphetamine for personal use—forbidding, in effect, prosecuting that crime as a felony—a frequent practice in California; and making it, with few exceptions, strictly a misdemeanor crime instead.

As noted above, the proposition also did the same for property crimes, reducing the felony ceiling to $950 for offenses such as theft, shoplifting and receiving stolen property, and for forgery and writing bad checks.

Most stunning, in terms of the difficulty of revising criminal justice sentences downward both in California and nationwide, is the rare provision inserted into the Prop 47 of de-felonizing these laws retroactively—thereby making well over 5,000 California jail and prison inmates immediately eligible for release, while insuring that another 4,000 or so whose cases are currently in the court system will no longer be subject to a felony sentence.

California's legislative analysts are predicting that the state's 220,000 annual felony conviction rate will now drop by 40,000, and state and local governments will save hundreds of millions of dollars

There is no doubt that what happens in California matters nationally. It's the nation's most populous state at 37 million residents, and has the country's largest prison population.

And for decades, this otherwise blue, liberal state has been a bell-ringing nationwide leader in America's harshly punitive wars on drugs and crime. The most notorious example came in 1994, when the legislature passed, and the voters approved by referendum, the toughest and most pitiless “Three Strikes” law in the nation, where even a non-felony conviction such as shoplifting could land an offender with a life sentence if it was third offense.

Dominated by special interest money from the state's criminal-justice industrial complex, and fearful of being labeled soft on crime, the state legislature has notoriously refused to pass almost anything resembling sentencing reduction.

Some of those interests were well-represented in the opposition campaign to Prop 47.

Voters Move On

But while state legislators have seemed to be stuck in the law-and-order 1990s ever since, California's voters have moved on. In 2012, they passed Proposition 36, which allowed judges to reduce third-strike punishments for those serving 25-years-to-life sentences for petty, non-violent crimes to time already served.

And now, through the referendum process, they've spoken out again.

As Adam Gelb notes, that alone sends an important message to the rest of the country.

“Voters rarely get a chance to weigh in directly on these matters,” he says, noting that the passage of Prop 47 represents the direct voice of voters in a state that has an out-sized influence on policy discussions across the nation.

And it is also the state that is already attracting national attention with its controversial “justice realignment” strategy which aims to reduce California's prison population by sending inmates convicted of lesser offenses to county jails.

As the state's justice system begins to implement Prop 47, it's a safe bet that the rest of the country will be paying attention.

Editors Note: For another take on the national impact of Prop 47, see University of California Berkeley Law School criminologist Barry Krisberg's Viewpoint this week in The Crime Report, “As California Goes, So Goes the Nation?”

Joe Domanick is associate director of the Center on Media, Crime and Justice at John Jay and West Coast Bureau Chief of The Crime Report. His new book, Blue: The Ruin and Redemption of the LAPD will be published by Simon & Schuster in July 2015. He welcomes comments from readers.

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