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Can Proposition 47 Solve California’s Problem With Mass Incarceration?

Reducing penalties for low-level felonies could be the next step in rolling back draconian sentencing laws and addressing the criminal justice system’s long legacy of racism.
Aerial view of Corcoran State Prison, in Corcoran, California. (Photo: Public Domain)

Aerial view of Corcoran State Prison, in Corcoran, California. (Photo: Public Domain)

While mass incarceration is a problem everywhere in the United States—America has more inmates per capita than any other country in the world—California has served as a crucible for this issue, the “Mississippi of mass incarceration,” in the words of University of California-Berkeley law professor Jonathan Simon.

Through the drug wars of the 1980s to the extreme-punishment mania of the ’90s, California has led the pack in incarcerating more people than any other state in the U.S. In 1969, the California prison population was around 20,000. In 2010, that number was over 165,000, a 735 percent increase. In the same time period, the state’s overall population grew only 72 percent.

Popular legislation like the Three Strikes Law added to the burden of California’s prisons. Because of this law alone, about 4,000 inmates are serving life sentences for non-violent crimes like stealing change from a parked car or breaking into a soup kitchen.

The California Police Chiefs argue that Proposition 47 will lighten penalties for possessing date-rape drugs and the theft of firearms, crimes, they contend, that signify someone intent on causing mayhem in the community.

Forced by the Supreme Court to scale back its prison population to comply with the prohibition against cruel and unusual punishment, California has come up with innovative ways to reduce its number of inmates. Under a policy known as re-alignment, the California Department of Corrections and Rehabilitation (CDCR) has kicked back responsibility for certain non-violent felons to the counties to house or otherwise oversee them as they choose. (Despite this, the California prison population is still not within the limit set by the Supreme Court.)

It’s clear that voters also recognize the need to change draconian sentencing laws. Two years ago, California voters rolled back the Three Strikes Law, and, according to the Stanford Law School’s Three Strikes Project, about 1,000 people have been re-sentenced or released under the new guidelines. Recently, Governor Jerry Brown equalized the punishment for the sale of crack versus powdered cocaine. This change will hopefully decrease the racial disparity in sentencing; the CDCR found that 98 percent of people sentenced for crack cocaine possession were African-American or Latino. Of course, it should also be noted that these changes have not come without some resistance—Governor Brown also vetoed a bill which would have reduced the penalties for drug possession.

Some of these policies seem to be working. Crime is down, and the prison population has been on a steady decline as well. The Sentencing Project released a report this past summer praising California’s efforts to decrease its prison population, which fell 23 percent between 2006—when prison populations reached their height—and 2012.

The next experiment in criminal justice might be Proposition 47.

Proposition 47, dubbed the Safe Neighborhoods and Schools Act, proposes to reduce penalties for low-level felonies like drug possession, thefts valued at under $950, and writing bad checks. Such crimes would become misdemeanors, meaning that they would be punishable by a year in jail rather than up to three years in state prison.

Of the 202,000 felony convictions in 2012, about 40,000 would be affected under the change, according to the Los Angeles Times. Proposition 47 would also allow those who have been convicted under the Three Strikes Law to petition for their release if their crimes are covered by the proposal.

“Proposition 47 is about rebalancing California's criminal justice spending priorities,” according to Californians for Safety, the sponsoring group, which is backed by big-name donors like the Open Society and the Ford Foundation. “It reduces prison waste and reallocates savings to mental health and drug treatment and other prevention strategies."

Even conservative thinkers like Newt Gingrich back Proposition 47 and other proposals to reduce the number of people in prison. As Gingrich wrote in the Wall Street Journal this past summer, “Prisons are the second-fastest-growing item in state budgets,” so any reduction in prison population promises to reduce costs.

Indeed, Proposition 47 would save money, which will be re-directed to mental health and addiction treatment, with some money going toward school truancy programs to combat the school-to-prison pipeline and victim’s services. The non-partisan California Legislative Analyst’s Office points out that the savings, while uncertain, could likely be in the “high hundreds of millions of dollars.” (The state currently spends over $60,000 per year per inmate, almost sox times as much as it spends on education per student.)

There’s much to admire about the proposed law. It’s a necessary corrective to the era of mass incarceration in California and represents a harbinger of a shift in attitude to come. Even further, there are concrete advantages to the change. For those who are charged with these felonies, a downgrade to a misdemeanor means less jail time plus a criminal record without the felony stamp, making it easier for these people to find employment. A Los Angeles Times editorial makes an interesting point that many women inmates are in prison for crimes which will fall under Proposition 47, meaning that a change in law will also, hopefully, stop the revolving-door problem for these people.

Of course, Proposition 47 isn’t exactly letting people free. One problem with sending people to county jail is that the savings to the state are often offset by jail costs. L.A. County Jail, the largest jail system in the country, is so overcrowded that it must release people early because there is no more available space. Even further, the L.A. County jail system is under investigation by the U.S. Department of Justice for failure to properly care for the mentally ill, a problem exacerbated by overcrowding, and there’s a concern about what will happen to people once they are released—the proposition does not provide a plan for re-entry services.

Those who oppose the idea mostly consist of the usual suspects: law-and-order types who argue that the legislation may release dangerous people back into the community. For example, the California Police Chiefs argue that Proposition 47 will lighten penalties for possessing date-rape drugs and the theft of firearms, crimes, they contend, that signify someone intent on causing mayhem in the community.

But, overall, opposition to the measure seems fairly muted. Interestingly, the California Correctional Peace Officers Association—a powerful political lobbying group that represents California’s correctional officers—has decided not to comment on Proposition 47, perhaps the strongest sign of any of the shifting tide in corrections.

While the proposition will undoubtedly reduce prison populations in California and provide a well-needed break to the swell of people in prison for non-violent crimes, it does continue to re-emphasize the divide between the violent super-predator, who should remain incarcerated, perhaps indefinitely, and the non-violent criminal, who is more sympathetic for release.

An emphasis on non-violent convictions in public debate problematically continues the social narrative of the fearsome violent criminal, who deserves to be locked up and deprived of medical care and basic dignity. This narrative, as Simon points out, has a disturbing undertone of racial disparity. The disproportionate number of minorities in prison reflects a legacy of racism, leading to problems like extreme policing in minority neighborhoods and an ever-deepening chasm in socio-economic class between minorities and non-minorities. Without changing the way we talk about all prisoners, violent or not, measures like extreme policing and inordinately long prison sentences will continue.

The media has been guilty of perpetuating this image of the minority violent offender. As a recent Sentencing Project report points out, news reports frequently show minorities when they talk about violent crime perpetrators. White people, on the whole, support stiffer penalties for crimes, including the death penalty, more so than minorities, and failure to address the public perception of violent criminal offenders will continue to reinforce this racial divide.

Ultimately, Proposition 47 may pave the way for other states to move away from prison sentences to battle lesser offenses, which signals a shift in the culture of mass incarceration. It’s a change that must come bit-by-bit, but Proposition 47 is a sign that taxpayers are starting to pay attention to an issue of both fiscal and humanitarian concern. Such measures are necessary, but not enough, to reform the criminal justice system, which for too long has been perpetrating racial bias.