One year after Proposition 47’s passage, is it working in the Bay Area?
on October 28, 2015
Last November, California voters passed Proposition 47, a law that allow residents with certain felonies on their records to submit a petition to have them reduced to misdemeanors. Brendon Woods—Public Defender for Alameda County—says that today, his first client who reduced her felony under the new law is now an intern in his office.
“This woman once had a drug addiction and was sentenced to county jail for stealing a sandwich from Walgreens. After serving her time in prison, she went to rehab for her drug addiction but still could not find a job with a felony on her record. Using Prop. 47, she was able to clear her record and start a new path on a new career,” said Woods. “This law gives the ability for people to turn their life around.”
The crimes that can be considered for reduction under Prop. 47 are: commercial burglary; check forgery; petty theft of less than $950; possession of methamphetamine, controlled substances, or concentrated cannabis; and receiving stolen property. The majority of people previously convicted in California on any of these charges are eligible to have them reduced to a misdemeanor. The maximum jail time for most misdemeanors is one year, so if the time was already spent in custody, then the person can be released. But for people who have serious prior convictions, such as for rape or murder, or who are registered sex offenders, the charges cannot be reduced.
According to Lenore Anderson, executive director of Californians for Safety and Justice, a non-profit working to improve the state’s justice system, about 10,000 inmates are eligible for re-sentencing under Prop. 47. The Legislative Analyst’s Office, a “watchdog” for the legislature that provides nonpartisan analyses of proposed legislation, stated in a report in March that the governor’s budget for the next fiscal year (2016-2017) assumes a reduction of 1,900 inmates housed in state prisons thanks to Prop. 47. The total fiscal savings the state expects from housing fewer prisoners will not be calculated until early January.
Prop. 47 was intended to relieve the overcrowded prison system in California and to help low-level offenders find work and housing after release. In California, the majority of employers require applicants to disclose prior felony convictions.
It followed another key effort to deal with the issue of overcrowded prisons, Assembly Bill 109, signed by Governor Jerry Brown on August, 2011. AB 109 focused on public safety “realignment,” requiring people convicted of non-serious or non-violent crimes to serve time in county jails rather than state prisons. It also shifted responsibility for supervising prisoners who were released to county probation departments, rather than state parole officers. Realignment also established a permanent funding stream for counties to be used at their discretion to implement their new responsibilities.
Both Prop 47. and AB 109 were reactions to the United States Supreme Court ruling in Brown v. Plata, a 2011 decision that stated California state prisons were so overcrowded that medical and mental health care was inadequate, even unconstitutional. The court found that California violated the Eighth Amendment because poorly maintained prisons are a form of “cruel and unusual punishment.” The court ruled that California must decrease its prison population to 137.5 percent of design capacity by June 2013. Design capacity is the number of inmates an institution can house, based on housing one inmate per cell and using single-level bunks in dormitories.
On February 10, 2014, two U.S. District Court judges and one U.S. Circuit Court of Appeals judge, in U.S. federal court, granted the California Department of Corrections and Rehabilitation’s request for an extended deadline, ordering the department to reach the 137.5 percent of design capacity by February, 2016, with interim population benchmarks to be met along the way.
According to the Legislative Analyst’s Office, after the implementation of Prop. 47, 4,420 inmates were released between November, 2014 and September, 2015. As of early this February, the state’s corrections department was housing about 132,000 adult inmates in the California prison system, according to department statistics.
Now, as the one-year anniversary of Prop. 47’s passage approaches, many people working in the state’s legal system are asking: Is the law working?
“In my opinion, Prop. 47 is working well. It has led to number of punishments being reduced, which is addressing the overcrowding prison issue in California,” said Garrick Byers, a public defender for Contra Costa County. “This is designed to minimize the bureaucracy.”
In Contra Costa County, so far there have been 1,200 Prop. 47 petitions filed and over 500 people released from custody within the county, according to Ellen McDonnell, a public defender in Contra Costa. The majority of the people seeking reductions have committed drug or petty theft-related crimes, said McDonnell.
According to Alameda County District Attorney Nancy O’Malley, in Alameda County so far 2,000 people have used Prop. 47 to have their felonies reduced. Her office is now attempting to go through the long list of people who qualify for sentence reductions under Prop. 47 to explain the process to them and how the law can benefit them with employment and housing opportunities. “The most challenging part is we are trying to go through the long list of people who are eligible. We are going back 20 years and trying to determine how to reach out to people who have felonies that can be reduced under this proposition,” said O’Malley.
While the new law allows most former offenders to reduce their sentences, the process doesn’t happen automatically. Instead, a person with a previous conviction who is eligible under Prop. 47. must retrieve his or her copy of their criminal record from the Superior Court where he or she was convicted, file certain Prop. 47 forms, which can be found on the website of the Superior Court, and send them to the District Attorney’s Office and the court house where their conviction occurred. The court then notifies the person by mail if their felony has been reduced.
Public defenders’ offices in counties across the state have dedicated resources to assist people in filling out Prop. 47 forms. For example, in Contra Costa County, residents can contact the public defender’s office, which will file a petition for them and arrange an order to get a copy of their records if needed.
If the person is still serving time in prison or jail, a petition is sent to a judge for consideration. If the person qualifies and there are no other charges keeping the person in state prison, then they may be released. There is no requirement for a court hearing, unless there is a need to address a question of the person’s eligibility.
Those seeking to reduce their felonies have three years in which to submit petitions. Prop. 47 petitions filed after 2017 will not be considered.
Since each person’s case is particular to that individual, experts say many people eligible under Prop. 47 don’t understand the law. “It becomes a challenge when misinformation spreads about legislation behind prison walls. Typically, people oversimplify laws to the public. This presents problems when you are dealing with individual cases and helping people understand if this is a law that applies to them,” said Misty Rojo, communications and campaign director for Justice Now, a nonprofit that works with women in prison.
Community activist groups have taken an active role in reaching out to residents to educate them about the new law. Oakland Rising, a non-profit that mobilizes voters about issues that affect their lives, conducted a phone campaign this summer to make sure that eligible people in Oakland and Alameda County understood the law and how to apply for a petition. “We are using word of mouth to spread the information about Prop. 47, making sure those who did not know about the law are aware of the benefits,” said Tracey Corder, field director of Oakland Rising.
When Prop. 47 was introduced last year, opponents feared the bill would lead to the release of people who would commit the same crime again, which is known as recidivism. Now, some crime experts say that Prop. 47 is indeed causing problems for the state’s legal system. “It is interesting that over just the last year since Prop. 47 has been enacted there has been a sudden increase of crime,” said David Bejarano, president of the California Police Chiefs Association. “Enrollment in drug treatment programs has decreased because of the lack of an incentive to complete drug treatment programs. If offenders are no longer incarcerated and not seeking treatment, they are more than likely reoffending in our communities.”
Bejarano says the Los Angeles County Sheriff’s Office recently found a 60 percent decrease in enrollment in drug treatment programs in LA County and about 30-50 percent decrease in other counties. But there has been no specific report that can provide clear data on whether crime levels are indeed up overall throughout the state. “I have heard from many law enforcements in the communities that ‘crime has gone up,’ but I have yet to see an clear evidence or report that can show this correlation—that due to Prop. 47 there has been a spike in crime,” said O’Malley.
Aaron Edwards, senior fiscal and policy analyst for the Legislative Analyst’s Office, agrees that no specifics are available yet. “Due to the fact that tracking data on recidivism relies looking individually at each case, and neither the local police departments nor the FBI have provided any reports, it is hard to accurately rely on assumed statistics,” he said.
And Prop. 47 supporters say that its critics have long used the public’s fear of increased crime to dissuade them from supporting it. “There seemed to be a scare tactic when the law was first introduced last year that assumed the streets would be filled with criminals. Law enforcement attempted to scare people into thinking all these people will come out of jail and run wild and commit all these crimes again,” said Woods. “This is bullshit. These are low-level offenses that should not have sent these people to jail in the first place.”
According to the Public Policy Institute of California, it costs an average of about $47,000 per year to incarcerate a prison inmate in California. While the state won’t have an exact amount of its savings until early 2016, people are already talking about what should be done with this money. According to the Legislative Analyst’s Office, California will save an estimated $100 million to $200 million from the law starting in the fiscal year 2016-2017. The state savings will be shifted into K-12 school programs, victim services and mental health and drug treatment.
Supporters and opponents of Prop. 47 agree that the savings are best spent on programs to assist prisoners as they return to civilian life. “From our survey of over 4,000 residents, 91 percent of people wanted to see the extra funding go into community programs that would assist with job placement, rehabilitation and education,” said Corder of the phone survey Oakland Rising conducted over the summer.
Some counties are also prioritizing putting resources into support networks for former prisoners reentering society. “What we did in Alameda County is establish a system of social workers and support networks for when they come out of jail or prison they have something to fall back on,” said Woods. “We must reinvest in programs for when these folks are released. If they have a drug addiction, sending them to prison is not helping them. That is unconscionable as a society.”
According to the Alameda Public Defender’s Office, Alameda County has revamped its drug court, which provides a treatment plan for people who have been convicted of non-violent drug offenses. Drug treatment provided by the court can be an alternative to jail time. The court has expanded its outreach and shortened the period required to attend, in an effort to make the court more accessible and give people better incentives to participate.
Rojo also wants to make sure the money is spent on resources for victims’ services and drug treatment. “Taking away the threat of prison and thinking that will deter crime is not the case. We need to have a system to support people and make sure the money goes to programs that are sustainable,” said Rojo. “We need to let people know it’s okay to fall and they will have something there to help them dust off and get back up again.”
State and the local officials say it’s still too early for a clear consensus on the true effects of Prop. 47 on the state’s crime levels and financial savings, but that it has already had an effect on those who have used it to restart their lives after being released from prison. The new law, said Edwards “removes barriers and lets them move on with their life.”
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