With Overcrowded Prisons, Californians Could Soften Some Crimes' Penalties

Law enforcement says Proposition 47 is the wrong way to lower the state's prison populations.
by | October 15, 2014

ELECTION 2014: This article is part of our coverage of ballot measures to watch.

California, a state undergoing massive changes in its criminal justice system, could soon lower penalties for 40,000 non-violent offenders a year if voters approve a November ballot measure.

The proposal, called Proposition 47, faces opposition from law enforcement groups, crime victims and local governments. They worry about how the measure would lower penalties for owning date rape drugs, stealing firearms and committing identity theft.

But California voters seem supportive of the effort. Sixty-two percent of likely voters said they would vote for the measure, compared to 25 percent who would vote against it, according to a September poll by the Public Policy Institute of California.

“The public is actually further along with the notion that we need to change criminal justice than our elected leaders are,” said Lenore Anderson, the executive director of Vote Safe, an advocacy group pushing the measure.

“The tough-on-crime era has not waned yet in Sacramento,” she said. “We know the public thinks we waste way too much money on prisons and we lock up way too many people for non-violent crimes. We knew that we could get further going to voters than we could going to the legislature.”

In fact, Anderson said, the ballot measure comes after two years of failed attempts to get California lawmakers to agree to similar proposals.

Law enforcement and crime victims groups, however, argue that the proposal is not well-thought out and could undermine some major changes the state is making to its prison system under the watch of federal courts.

The changes, known as “realignment,” have sent more offenders to serve time in county jails rather than in prisons, in an effort to reduce overcrowding in the state’s prisons.

“This measure couldn’t come at a worse time,” said Chris Boyd, president of the California Police Chiefs Association. “We’re coming off several years of prison realignment… If this measure were to pass, it would make the task of dealing with realignment all the more difficult and, in some cases, in fact impossible.”

Prop. 47 would raise the threshold for which crimes are considered felonies. Crimes such as grand theft, shoplifting, receiving stolen property, writing bad checks or forging checks would, in most cases, be considered misdemeanors as long as the amount involved is $950 or less. It would also lower penalties for possession of illegal drugs for personal use.

That would mean those crimes would generally carry shorter sentences, and prisoners would serve time in county jails rather than state prisons. Law enforcement officials caution that, with county jails filling up, many offenders would likely serve no time at all.

Approximately 40,000 people in California are convicted of those crimes a year, estimated the state’s Legislative Analyst’s Office.

The new rules would eliminate protections in current law, opponents say. They noted that stealing a handgun, which is now a felony, would become a misdemeanor under the proposal, because nearly all handguns are worth less than $950. People caught with date rape drugs would be let off with misdemeanors, and drug treatment would do little good in preventing them from using the date rape drugs again.

Plus, the proposition would not ratchet up penalties for criminals who habitually break the same laws.

“People can possess these drugs. They can steal every day. They can do these crimes over and over again, no matter how many times, and they will continue only to face only misdemeanor punishment,” said Nick Warner, legislative director of the California State Sheriffs Association.

The proposal does more than just lower penalty thresholds: It would try to recapture money the state saves in prison costs, and use that money for other services: 65 percent for mental health and drug abuse treatment; 25 percent for anti-truancy efforts; and 10 percent for victim services.

As the debate has shifted to the electorate, the proponents have a big financial advantage over opponents.

Groups supporting the measure have collected more than $4 million, including more than $1.2 million apiece from B. Wayne Hughes, the billionaire founder of Public Storage, and from the Open Society Policy Center, affiliated with billionaire George Soros. Opponents of the measure, on the other hand, raised just $278,000 in the first nine months of the year.

If the measure passes, it would be the latest in several steps California has taken to loosen sentencing laws for nonviolent offenders and try to reduce overcrowding in its prisons.

Two years ago, California voters overwhelmingly backed a proposal to scale back the state’s “three strikes” law, a 1994 measure that had mandated life sentences for offenders with three felony convictions. Under revisions passed by voters in 2012, offenders would only face life sentences if the third felony was a serious or violent crime. The measure led to the release of nearly 1,900 prisoners, according to the state prison system.

A year earlier, Gov. Jerry Brown, a Democrat, pushed through the “realignment” plan in response to federal court orders. The state’s prison system is now 2,000 inmates below the maximum population allowed by federal courts, according to a September legal filing, but it is still at 141 percent of the prison system’s intended capacity.

California is under immense legal pressure to reduce prison overcrowding. The U.S. Supreme Court ruled in 2011 that overcrowding in California’s penitentiaries violated the Eight Amendment’s protections against cruel and unusual punishment, in part because of prisoners’ lack of access to health care. The high court ordered California to lower its prison population, which at the time stood at 140,000 inmates, to 137.5 percent of the system's designed capacity (or roughly 114,000 inmates). Lower courts set a deadline for California to meet that threshold by February 2016.

But states that don’t face nearly the same legal scrutiny as California are looking to reduce their prison populations, as well. They are responding to concerns that imprisoning low-level offenders is a costly but often ineffective way to prevent them from committing further crimes. Tough-on-crime measures have also lost some of their political salience as crime rates have dropped.

At least 14 states reduced felony theft thresholds since 2009, according to the National Conference of State Legislatures (NCSL). In many of those states, the thresholds had not increased with inflation, meaning offenders faced stiffer penalties for stealing less and less valuable goods. Meanwhile, at least 17 states adjusted thresholds for drug crimes, NCSL reported.