The passage of California’s Proposition 47, which reduces some drug and theft offenses from felonies to misdemeanors, in November 2014 has resulted in the release of hundreds of people from jails. It has also generated thousands of resentencing requests, and contributed to a decrease in the overcrowding of California’s prisons. Despite these accomplishments, activists point to several shortcomings of the proposition, saying it is just a beginning to the work that needs to be done to confront mass incarceration.
Under Prop. 47, drug possession and theft offenses (forging or writing bad checks, petty theft and receiving stolen goods) involving less than $950 are now misdemeanors instead of felonies. People who are on the sex offender registry and people previously convicted of rape, murder or child molestation can still receive felony sentences for those Prop. 47 misdemeanors. Savings under the measure are intended to go to mental health and drug rehabilitation programs, K-12 schools, and crime victims.
Shortly after Prop. 47 passed, hundreds of people were released from Bay Area county jails and over 4,700 incarcerated people became eligible for resentencing. Courts were quickly inundated with requests for resentencing and record purges from scores of people.
“Many are no longer on probation and are not burdened with the expensive felony fines and fees.”
Prop. 47 has also helped reduce crowding in California’s prisons. A panel of three judges ruled in 2013 that California reduce its prison population to 113,722 by February 2016, which is 137.5 percent of what state prisons are designed to hold. In March, 2,700 people had already been released from prison under Prop. 47. As of mid-June, the number of prisoners in state-owned prisons in California is 111,368, according to the state prison system’s weekly population report.
Alameda County Senior Assistant Public Defender Jody A. Nuñez, who works with clients through the office’s Prop. 47 program, told Truthout, “The clients who have received relief are very happy. Many are no longer on probation and are not burdened with the expensive felony fines and fees and the exorbitant probation supervision fees. So I would say the effects [of Prop. 47] are positive.”
The measure has its share of critics among the criminal legal establishment, of course. San Mateo County District Attorney Steve Wagstaffe told the Oakland Tribune’s Malaika Fraley, “We’re finding that about one-third of the cases that were appropriate at the felony level are now misdemeanors. That means that offenders are serving little or no time and that means they are out in our community. For most of them, that’s fine, but there are a portion of them who are serious offenders with long prior records.” It is unclear which people Wagstaffe is referring to, given Prop. 47’s strict conditions for who is released. Meanwhile, Los Angeles County Asst. Sheriff Michael Rothans of the Los Angeles County Sheriff’s Department blamed Prop. 47 for the area’s rise in property crime, and urged his deputies to keep making drug arrests. “The same people are arrested for narcotics and property crimes,” he told the Los Angeles Times. “We know the cycle is continuing because we know they should have been in jail.”
Violent and property crime did increase in Los Angeles this year. However, that was due to a number of factors, such as a change in how the Los Angeles Police Department classifies violent and property crimes, and “an increase in domestic violence and alcohol-fueled street attacks,” according to the Los Angeles Times.
However, killings in Los Angeles are down 2 percent from where they were in 2014. Throughout the San Francisco Bay Area, homicide rates have fallen to record lows in San Francisco, Oakland, Richmond and Santa Clara. Across California, “annual homicides plunged 27 percent from 2004 to 2013 – from 2,394 to 1,745,” according to SFGate. This fits with national crime trends: Throughout the US, crime rates remain at historic lows.
Misdemeanor Arrests Still Carry Consequences
Meanwhile, other critics of Prop. 47 argue that reducing certain felonies to misdemeanors does not go far enough to reform the judicial system. In an interview with Slate, Loyola Law School professor and misdemeanor expert Alexandra Natapoff explained, “Sometimes we engage in criminal justice reform that’s designed to make the system more lenient or more generous, but an unintended consequence is that it makes it easier to sweep people into the process in the first place.” Unless broader changes are enacted, police may actually end up arresting more people, under the new rules.
Natapoff says that misdemeanors often carry harsh consequences. “[G]etting a citation or a ticket for a non-jailable misdemeanor actually carries with it all kinds of punishments. It still gives people criminal records. It still affects their employment. It can still affect their eligibility for public benefits. It can affect their immigration status, their student loans … even though the word decriminalization suggests people are not going to be punished.”
A 2009 study on misdemeanors by the National Association of Criminal Defense Lawyers found that the misdemeanor court system is overcrowded and haphazardly run, and defendants – who are disproportionately people of color – are often denied their constitutional rights. In 2013, police in the United States made over 11 million arrests, most of which were for low-level offenses like drug abuse, disorderly conduct or other misdemeanors. Defendants in misdemeanor courts are often not informed of their right to an attorney under the Sixth Amendment and sometimes “are coerced into waiving counsel to avoid having to spend additional time in jail awaiting the appointment,” according to the study.
“With misdemeanor charges the clients do not face the specter of incarceration for long periods of time.”
Sometimes, defendants have to pay an application fee to get an attorney. Additionally, many misdemeanor defendants cannot afford their own private attorney. As a result, misdemeanor defendants often lack legal representation. When they do get an assigned attorney, that lawyer is often so overworked that it is virtually impossible for them to adequately defend their clients. On top of that judges and prosecutors push defense attorneys and defendants “to take action with limited time and knowledge of their cases.” This leads to innocent people pleading guilty, “inappropriate sentences, and wrongful incarceration, all at taxpayer expense.”
Nuñez, however, says the reduction of certain felony offenses to misdemeanors has improved the welfare of her clients. “With misdemeanor charges the clients do not face the specter of incarceration for long periods of time, possibly in state prison or local prison … [I]ncarceration interrupts people’s lives and they lose what jobs they are able to get by being placed in custody,” she told Truthout. “At least if the charges are only misdemeanors the clients can be released on their own recognizance or post much lower bail amounts. If they were held on felony probation violations there would be no bail set and they would remain in custody for two to six weeks before they were brought before the court for a hearing. Thus, anytime a client is facing less time and has the ability to deal with his or her matter out of custody is a good thing.” Nuñez said that her clients are happy to be free from “the constraints of felony probation” or to no longer be on probation altogether.
She also points out that outreach to eligible clients is a challenge for her office. Getting the word out, she says, is also “important for our clients getting felonies reduced to misdemeanors and expunging their records if they are eligible for that additional relief. This can make a huge difference in a person’s eligibility for work. It could be the thing that moves them out of the system completely.”
Who Is Missing?
Other criticisms of Prop. 47 touch on the fact that, when it comes to this particular reform, some incarcerated people are left out of the discussion entirely. Manuel La Fontaine, an organizer with All of Us or None, a grassroots civil and human rights organization fighting for the rights of formerly and currently incarcerated people and their families, told Truthout that while the organization “supported the release of people from captivity,” they also objected to the “dominant divide-and-conquer narrative” of Prop. 47.
Because Prop. 47 reduces sentences for drug and petty theft offenses but not violent crimes, a large swath of the state’s prison population will remain behind bars with long sentences. The proposition also neglects those who already have substantial criminal records – a population that disproportionately includes people of color, who are particularly targeted by police. According to California prison census data for 2013, only 8.7 percent of the state’s prison population were incarcerated for drug crimes. The majority of prisoners are locked up for crimes against persons (70.2 percent) – like first- and second-degree murder (16.5 percent), robbery (16 percent), and assault/battery (12.2 percent) – and property crimes (13.7 percent).
“The dividing lines for sentencing reform reinforced the idea that certain convictions were acceptable, while others are not and should never be,” La Fontaine said. The mentality, he added, is “if you’re convicted of a violent crime, you shouldn’t be part of the sentencing reform, you should not able to clean your record and, unfortunately, that’s the norm right now in the state of California.” Many members of All of Us or None were convicted of violent offenses. In California, not all convictions can be expunged, namely felonies or those of anyone who served time in state prison. So for people who were convicted of other offenses, particularly felonies and violent offenses, they need a governor pardon or certificate of rehabilitation to expunge their records. Moreover, having a felony on one’s record can lead to several barriers in one’s life after prison, such as difficulty in finding employment, housing, societal stigma and, in some states, the loss of voting rights.
Prop. 47 still perpetuates the notion that drugs are a criminal problem rather than a public health issue.
La Fontaine added that violent crimes in the United States do not occur in a vacuum. Violent street crimes in inner-city neighborhoods are “an offshoot of the continuation of violence that springs from laws, policies, and reactionary practices” like the 1996 Welfare Reform Act – which essentially ended welfare – and California’s three-strikes law that “create the volatile conditions in these neighborhoods,” he said. Numerous studies show that crime is typically a product of inequality, concentrated poverty, high unemployment and dismalsocialconditions. La Fontaine explained that laws that hurt poor people make them do things they normally would not do, like commit a robbery or violent crime, out of desperation or self-preservation. In cities like Chicago or Oakland, children living in concentrated poverty are more likely to witness violence in their communities or homes than more affluent areas. As a result, those children experience serious levels of trauma and are more likely to commit acts of violence in the future. Prop. 47, in neglecting those convicted of more serious offenses, ignores these systemic root causes.
Another flaw of Prop. 47 is that while it reduces drug offenses from felonies to misdemeanors, it still perpetuates the notion that drugs are a criminal problem rather than a public health issue. Labeling drug offenses as misdemeanors reduces the punishment – but it still means that drug-related issues will be handled by the judicial system. Even though a portion of savings from Prop. 47 are supposed to go to drug prevention programs, the majority of it – 65 percent – “will go directly to the Board of State and Community Corrections (BSCC), the body responsible for directing billions of dollars of construction money to prisons, jails, and juvenile detention centers. The Board is composed of majority law enforcement officials,” according to Californians United for a Responsible Budget (CURB).
La Fontaine said that funding could be used to build “therapeutic cages” or “substance abuse programs in jails” instead of community-based programs. In a CURB press statement, Pete Wowed of the California Partnership, a statewide coalition of anti-poverty organizations, said, “The battle now is to make sure that those services stay in the community and are not just another excuse to build more jails. If the BSCC allows these resources to end up in the hands of the Sheriffs, they’ll be violating the will of the voters, and pushing poor people towards jail, instead of the services they need.”
La Fontaine criticized the leadership of the sentencing reform movement, arguing that the voices of formerly and currently incarcerated people are often left out of the discussion and key decision-making moments. Their voices are usually spun and exploited by criminologists, lawyers and experts who are out of touch with the realities that formerly and currently incarcerated people deal with. Those leaders become a “buffer” or “spokespeople” for the formerly and currently incarcerated. “We are, unfortunately, forgotten and excluded from the meaningful discussions and decision-making tables,” La Fontaine said. “How come we weren’t there from the beginning in designing Prop. 47 with the authors and strategists?”
Moving forward, La Fontaine says that the language and perception of formerly and currently incarcerated people needs to change, with an emphasis on “people” rather than words like “offender.” Such words make it hard for people on the outside to recognize those who have been or are currently in prison as real people. Additionally, he said it’s important to “place those most directly impacted – the people in the case: African Americans, Native Americans, formerly incarcerated and currently incarcerated people … at the center of conversation, shaping policies, shaping funding priorities, shaping institutions, shaping press releases, shaping reports, and so forth.” He also added that employers should not discriminate against formerly incarcerated people nor should questions about past convictions be asked during the job application process.
All of Us or None started a campaign called “Ban the Box,” which calls for the elimination of questions and checking of the box about prior convictions in applications for employment, loans, housing, public benefits, insurance and other services. According to the organization:
Banning the box on public employment applications will contribute to public safety because it will promote stable employment in our communities. Communities of color and poor communities already are targeted by mass imprisonment, racial profiling, school closures, and low employment rates. People coming out of prison or county jails need to be able to feed their families, pay rent, and reunite with their families, and return [to] their lives as productive members of the community. People with jobs and stable community lives are much less likely to return committing crimes in order to survive.
“At the end of the day, our people gotta eat,” La Fontaine said.