Proposition 47: A Simple Step Toward Reducing Mass Incarceration

California Proposition 47, on the ballot for voter consideration this November, would change the legal classification of many "nonserious and nonviolent property and drug crimes"  from felonies to misdemeanors (read the details on ballotpedia.org here).  This simple change has important consequences.  A crime classified as a felony may be punished with a sentence in state prison, while a crime that is classified as a misdemeanor may be punished only with probation or a sentence of one year or less in a county jail.  If voters approve Proposition 47, Californians convicted of crimes that pose little or no risk of violence like forging a check or receiving stolen property if the amount involved is worth less than $950 dollars (the existing dollar amount was set in the 1970s), or simple possession of drugs, would no longer end up in state prisons.  Moreover, the law would allow prisoners currently under felony sentence for one of these crimes to be re-sentenced "unless court finds unreasonable public safety risk," a change that could result in as many as 10,000 fewer prisoners in our dangerously overcrowded and degrading state prisons.

The debate on Proposition 47 has mostly turned on how dangerous these crimes and the people who commit them are.  Proponents, supported by most criminological research, argue that prison is a costly (approximately 62K a year for the average prisoner in California) and unnecessary way to address these non-violent crimes.  Probation and if necessary some jail time have at least as good a chance of curbing future criminal behavior (our prisons have had a very high rate of recidivism and make no effort at rehabilitation) and with lower costs fewer prisoners means more money that Proposition 47 would channel into law enforcement, drug treatment, and victim compensation.  Opponents, most of the state's District Attorneys, claim that the law would weaken their ability to send truly dangerous people who have been convicted of a relatively minor crime to state prison and use the threat of state prison to compel less dangerous people to accept drug treatment as part of felony probation (probation is also an option for many of these non-violent, non-serious felonies, at least for first offenders).

But the real issue is not crime (which remains at historically low levels throughout California); it is mass imprisonment.  Beginning in the late 1970s and early 1980s, California embraced prison as the answer to what was then a historically high level of crime in the state and began to swell its prison population from around 20,000 prisoners in 1975 to nearly 180,000 in 2006.  (This was a national trend but California took a typically extreme approach, read more about the causes in chapter 2 of Mass Incarceration on Trial).  This explosion in prisoners was a product of two different changes in sentencing.  First (and the part that Proposition 47 addresses) prosecutors began using their discretion to seek state prison time for crimes that could be charged as misdemeanors and had been historically. This meant tens of thousands of people with relatively short prison sentences flooded our prisons and clogged (along with tens of thousands of technical parole violators) the reception centers where prisoners are supposed to be classified and assigned longer term housing but which instead became packed irregular wards with overcrowding approaching 300 percent of design capacity. Second, law makers (aided by the Determinate Sentence Law of 1976 which gave the legislature power to set prison sentences) lengthened the sentences of most felony crimes, especially violent crimes.  This meant that tens of thousands of prisoners who in the past would have left prison as they aged out of serious criminal behavior (generally by 40), remained in prison into and in many cases beyond middle age, when chronic illness begins to generate increasing suffering and costs.

The inability to manage these mounting problems of overcrowding and health care led to the remarkable 2011 decision of the Supreme Court in Brown v. Plata to uphold a massive population reduction.  The State responded with the realignment package in November 2011 that sent most people convicted of non-serious, non-sexual, non-violent felonies to county jail or probation rather than prison.  Proposition 47 expands realignment by taking the least serious of these offenses out of the felony category altogether.  That is important because even under realignment, courts can sentence people to years of incarceration (only in county jail rather than state prison); classifying these low level crimes as misdemeanors assures that they have a better chance of receiving probation and caps any jail sentence at 1 year.   Moreover, felony convictions on your record make it much more likely that you will go to state prison for your next offense.  Eliminating minor offenses that do not warrant the felony label makes that kind of criminal record enhancement inherently fairer and more objective.  It is also important because the label felon continues to have important negative consequences that last years or even decades for employment, housing, and social benefits.  Conviction of a felony makes it much harder for people to rebound from crime and punishment to become productive citizens.

Another important group of prisoners that Proposition 47 might help are those who are serving an enhanced "second strike" sentence under the original 3-Strikes law (which had the effect of adding 10 years to the sentence for any felony if the person was convicted of a violent or serious felony previously) but who were not aided by the last 3-Strikes reform (which applied to 3-strikers).  This could involve relief for thousands of existing prisoners facing years more imprisonment; helping the state meet its Brown v. Plata obligations with little risk to public safety.

Beyond helping to directly reduce the number of people actually in prison or exposed to it for minor crimes, the most important feature of a significant victory for Proposition 47 is the signal it sends that the toxic crime politics of the 1980s and 1990s is truly behind us.  In those decades a media frenzy about violent crime produced ballot initiatives that pushed crime policy significantly toward the extreme, leaving politicians scrambling to catch up with matching legislation.  If Proposition 47 wins it will be the second election cycle in a row in which voters have signaled they want more reform than Sacramento can deliver.  Voters are correct.  Today's leading politicians in both parties are talking about reform, but their vision is so cautious that we are unlikely to escape mass incarceration through legislated reform alone.

So far polls suggest Proposition 47 could win handily, even in an election cycle expected to be weak for younger more liberal voters.  Prosecutors and victim organizations tightly aligned with law enforcement are kicking up their opposition.   The opposition argument comes down to two points, trust and fear.  Prosecutors say "trust me" with the discretion to use felony power even on minor crimes and I'll find the truly dangerous criminals before they commit a bigger offense.  That was the argument for Three-Strikes (the classic example of toxic crime politics at its worst) and voters are rejecting it now.  Instead opponents are increasingly relying on a second tactic, fear, bringing up demonized examples of offenders who might "benefit" from the changes.  Two key examples are people caught in possession of rape drugs and people caught in possession of stolen weapons.  Assuming the street values of the drugs and the guns were below $950, the possessors could no longer be charged with felonies.  Big deal.  First of all police and prosecutors have many options in charging.  If someone is possessing rape drugs with the intent of raping someone, that is the crime of attempted rape.  If someone is in possession of stolen weapons, they may also be guilty of a burglary in which they stole the weapons. Prosecutors will say that it is difficult to convict people of serious crimes, and much easier to use possession offenses to go after the bad guys.  But that is exactly the thinking that got us into mass incarceration and what we have to use the initiative system to escape.  Besides, Proposition 47 leaves plenty of of "protection" in place.  The reduction to misdemeanor status does not apply to people previously convicted of murder, rape, or certain sexual and gun crimes (many of the same folks the prosecutors are demonizing).  Moreover, misdemeanor conviction allows for probation or a sentence of up to a year in a county jail, methods address criminal behavior at least as effectively as imprisonment.

Approving Proposition 47 is a simple and effective way for voters to take another step in leading California away from the moral precipice of mass incarceration.  We cannot trust Jerry Brown or the legislature to remove the taint of barbarism that hangs over a prison system that the Supreme Court declared "uncivilized."  Brown gave us the law enforcement friendly Determinate Sentencing Law in 1976 which helped speed mass incarceration in California, and he has now aligned himself with protecting the status quo in our prisons.  While his re-election is inevitable, voters cannot wait another four years for leadership on restoring dignity and human rights to California's legal system.  We will need to do more.  With half of California's prisoners now serving death, life without parole, life with parole, or multi decade determinate sentences our prisons are rapidly becoming even more degrading and expensive as they concentrate on aging prisoners with little hope.  Incarcerating the vast majority of these older, sicker prisoners makes no penal sense and will continue to limit the availability of tax revenues to solve the state's pressing environmental and educational needs.  To change that we will need an initiative to roll back sentences on violent crime.  Yes, you read me right, we need shorter sentences for violent crimes.  The vast majority of people convicted of an offense against the person (what California's penal code calls violent crimes) are no more likely to commit such an act in the future than those who have not been convicted but come from the same social circumstances and situation.  Most violence is situational, ignited by complex combinations of conflicts, propensities and accelerants like drugs and alcohol.  For the few that have a long term propensity to violence, proper risk assessment and the use of some indeterminacy in our sentencing laws for violent crime could allow for selective incapacitation.  There are far better ways to spend money on reducing violence than incarcerating aging prisoners who once did something violent.  But for now few even in the anti-mass incarceration community are ready to take on that fight.  Please join me.