The ‘Lies’ Behind the Selling of California’s Prop 47

A recent California Supreme Court ruling ensured that the state’s prisoner realignment policies will keep the most violent offenders behind bars. The president of the LA Deputy DA’s association argues that was a needed “common-sense” corrective to reforms in the state’s Three-Strikes law.

Politics will never exist without spin doctors. Yet, as cynical as our political system has become, recent California ballot measures sold to the public as “public safety” measures have gone beyond the pale.

Nearly every soft-on-crime law enacted in the last half decade included the words “safe” or “safety” in the description. No two better examples exist than Propositions 47 and 57.

In California, Prop 47 advocates called it the “Safe Neighborhoods and Schools Act.” Prop 47 did nothing for neighborhoods except to dramatically increase property crime. It did nothing for schools except for making undelivered promises to increase funding.

Editor’s Note: Proposition 57 (2016)  increased parole and good behavior opportunities for felons convicted of nonviolent crimes and allowing judges, not prosecutors, to decide whether to try certain juveniles as adults in court.

Last month, the California Supreme Court delivered some common sense reality to Prop 47 in People v. Valencia.

At issue were “third strikers” — criminals who have two or more prior convictions for serious or violent crimes. Under the “three strikes” law, a criminal who had two or more prior “strike” convictions and who then committed any new felony offense would receive a sentence of 25 years to life.

As originally written and implemented, that sentence was mandatory unless a judge used her discretion to “strike” one or more of the prior convictions at sentencing. But the public became disillusioned with a sentencing scheme that was, at times, perceived as inflexibly harsh.

In 2012, with the passage of Proposition 36, the 25-years-to life sentence was limited to cases where the new felony offense was also a serious or violent crime. It also allowed inmates sentenced under the old rules to petition for resentencing.

Crucially, however, a judge could deny a petition to reduce the sentence if the court, in its discretion, determined that the inmate “would pose an unreasonable risk of danger to public.”

Enter Prop 47. It reduced certain drug and theft felonies to misdemeanors. Prop 47 also had a resentencing provision which allowed inmates to petition for a reduction in their felony sentence if that crime had since been reduced to a misdemeanor.

Michele Hanisee

Like Prop 36, Prop 47 gave the court discretion to deny a reduction if resentencing “would result in an unreasonable risk of danger to public safety. But the discretion granted was so limited as to be illusory.

Under Prop 47, a judge could only refuse to reduce the sentence if he or she found an unreasonable risk that the inmate would commit one of eight specific types of violent crime: homicide, attempted homicide, murder, solicitation to commit murder, sexual assault on a child under age 14, assault with a machine gun on a police officer or firefighter, possession of a weapon of mass destruction, or any offense normally punishable by life or death.

Based on the overlap in these different provisions, two third-strike inmates petitioned for resentencing, arguing that the language contained in Prop 47 should apply to them.

The California Supreme Court observed that if the petitioners’ argument was correct, it would make it easier “for recidivist serious or violent offenders to have their life sentences vacated, and render them more likely to be released.”

The California Supreme Court wisely rejected the inmate’s appeal, holding that there was nothing in Prop 47 that suggested it was intended to apply to serious and violent third strikers seeking resentencing. “[N]either the initiative’s text nor its supporting materials describe any intention to amend the criteria for the resentencing of recidivist or violent felons….”

Nor, said the court, was such a result predicted by the Attorney General or the Legislative Analyst in their summary of the measure—or discernible to the voting public.

Most illuminating, however, was the dissent of Justice Liu, who in blasting the majority for the decision wrote: “The court today concludes that the drafters of Proposition 47 pulled a fast one on an uninformed public.”

Truer words have never been spoken.

With their deliberately misleading title referencing “safe schools” and platitudes about public safety, the drafters of Prop 47 fooled the public to accomplish their goal of decriminalizing property crimes and releasing convicted criminals from custody.

Those behind Prop 57 took their cues from Prop 47, selling the public with assurances that its early parole provision only applied to “non-violent” offenders. That’s news to the California Department of Corrections and Rehabilitation, whose published regulations on early parole explicitly include inmates sentenced to prison for violent offenses.

Recently, we saw an example of that regulation in effect, with the Fresno DA’s office highlighting an inmate who attempted to stab two people being paroled two years into an eleven-year sentence thanks to Prop 57.

Lawyers can pore over the Valencia opinion for its lessons on the intricacies of statutory construction.

The big takeaway from Valencia was contained in the dissent, which inadvertently highlighted a truth worthy of repeating: “The court today concludes that the drafters of Proposition 47 pulled a fast one on an uninformed public.”

Editors’ Note: For another view, see TCR story, “California Officials Say Prison Realignment Puts State on Right Track.”

Michele Hanisee is President of the Association of Los Angeles Deputy District Attorneys (LADD), the collective bargaining agent representing nearly 1,000 Deputy District Attorneys who work for the County of Los Angeles. An earlier version of this essay was published in the LADD website. Readers’ comments are welcome.


California Officials Say Prison Realignment Puts State on ‘Right Track’

The state prison population has declined under the six-year-old plan to keep many convicts in local jails, the National Forum on Criminal Justice was told today . But violent crime has also gone up recently.

A panel of California officials from across the criminal justice system agreed that the state’s nearly six-year-old “realignment” of inmates has led to a long list of improvements for crime victims and lawbreakers alike.

The officials spoke yesterday at the opening session of the National Forum on Criminal Justice, which is being held this week in Long Beach, Ca. The event is attended mostly by state criminal justice leaders from around the U.S. and is sponsored by the National Criminal Justice Association, the Justice Research and Statistics Association and the IJIS Institute.

It was less clear that the changes, which were led by Gov. Jerry Brown in response to a Supreme Court ruling to cut the state’s prison population, have led to a reduction in crime.

Last summer, the state said that after two years of decline, the number of violent crimes increased by 10 percent the previous year. The FBI’s preliminary crime data for the first half of last year said that reported violent crime increased in two-thirds of California’s largest cities.

Under “realignment,” many prisoners formerly in state custody were shifted to the state’s 58 counties, along with funds to aid in ex-inmate rehabilitation. Also, what are known as the “three nons”–non-violent, non-serious, and non-sexual offenders–are kept in local jails or on probation or in treatment programs instead of going to state prison in the first place.

The state’s prison population totaled about 160,000 when realignment began. It was down to 131,000 last week, but that was up slightly from a year earlier.

Scott Kernan, director of the state’s Corrections and Rehabilitation Department, declared that “we are on the right track,” based both on the record of realignment and of Proposition 57, which was approved by voters last November by a 64 percent to 35 percent margin.

The measure gives prisoners the opportunity to earn credits that can speed their release. That provides “a motivation to do something” useful while they are incarcerated, Kernan aid.

Proposition 57 also allows for earlier release of prisoners serving life terms who have good records behind bars. Kernan said that more than 3,000 lifers have been released in recent years, and their recidivism rate is only one percent.

The significance of California’s realignment was that it has begun to turn around a trend in which “we were spending a great deal of money on incarceration and we weren’t getting good outcomes,” said Linda Penner, chair of the California Board of Community Corrections.

The shifting of funds formerly being spent to keep criminals locked up to an expansion of local services across the justice system is part of several “dramatic changes” in the justice system instituted by Gov. Brown, Penner said.

The improvements have been seen in most corners of the criminal justice system, other panelists reported.

Robin Lipetzky has been chief public defender of Contra Costa County since 2009. When she began in the criminal defense field in the 1990s, she and fellow lawyers believed their jobs consisted only of fighting for their clients and not “fixing their lives.”

In what she calls a “huge change,” the availability of more funds for local inmate rehabilitation has defenders looking for ways to keep their clients from committing more crimes, she said.

Prosecutors have joined in the process, too, said Nancy O’Malley, district attorney in the relatively high-crime area of Alameda County near San Francisco.

Many prosecutors once focused only on sending offenders to prison. Now, it is common to seek ways of “catching people early before they can get too far into the justice system,: she said. This goal is explained more clearly to crime victims, who generally support it, O’Malley said.

One important goal of modern-day prosecutors should be to “explain to people what we’re doing,” O’Malley said.

A somewhat less enthusiastic view of realignment was offered by the law enforcement spokesman on the panel, Sheriff John McMahon of San Bernardino County, a large area that stretches from east of Los Angeles to the Nevada border.

Realignment’s prisoner shift meant that his county’s 5,000-prisoner total rose to 6,000, McMahon said. It became harder to manage the inmate population, which he said had more options for activities while they were in state prisons.

At the same time, the change has made sheriff’s deputies more conscious of their role in rehabilitation, compared with their attitude years past in sending criminals to state prisons and forgetting about them.

Now, his department takes a bigger role in expanded programs for prisoner reentry into society, and the recidivism rate of local ex-inmates is 40 percent and dropping, he said. (Typically, recidivism rates in many areas nationally have been 67 percent or higher.)

All of the speakers agreed that a positive change under realignment was having representatives of all justice system components — law enforcement, prosecutors, public defenders and corrections programs — meet periodically to discuss criminal justice improvements. Other agencies need to be involved, too, especially schools, said prosecutor O’Malley.

The California approach to justice got an endorsement from a non-panel member who spoke, Dionne Wilson of the California-based Alliance for Safety and Justice. Her husband, a police officer in San Leandro, Ca., was shot and killed in 2005 while responding to a disturbance call.

The assailant, who had been on probation for another offense, was convicted. Still, Wilson came to believe that the murderer was “on death row, but I had nothing to show for it.” She has since joined the forces for criminal justice reform, praising the approach of the state’s realignment of “putting the services [for ex-inmates] where they need to be.” She added that, “We aren’t going to incarcerate our way out” of the crime problem.

Ted Gest is president of Criminal Justice Journalists and Washington bureau chief The Crime Report.