As Prop 57 goes into effect, experts debate impact on youth, prison overcrowding

Mule Creek State Prison, 2006 (Photo Courtesy of California Department of Corrections and Rehabilitation)

Mule Creek State Prison, 2006 (Photo Courtesy of California Department of Corrections and Rehabilitation)

In November, Californians passed Proposition 57 by a 64.5 percent vote. Formally known as the California Parole for Non-Violent Criminals and Juvenile Court Trial Requirements Initiative, and strongly endorsed by Governor Jerry Brown, Oakland’s former mayor, the new law attempts to ease prison overcrowding by increasing parole opportunities for inmates and changing how juvenile offenders are charged.

Now local and state agencies are grappling with the complexities of putting Proposition 57 into effect and debating the effects it will have on prisoners and their chances of re-offending.

Maureen Washburn, a policy analyst for the Center on Juvenile and Criminal Justice (CJCJ), a San Francisco based non-profit that works to decrease the need for incarceration, said that one of the immediate changes following the passage of Proposition 57 is eliminating “direct file” for youth offenders. Direct file is when a state gives prosecutors the power to file charges against juveniles within adult criminal courts instead of juvenile courts. Since 1976, California has allowed people as young as age 16 to be sent to adult courts and facilities. Since 2003, over 10,000 youth offenders were prosecuted in adult courts, and nearly 70 percent of those cases were a result of direct file, according to the CJCJ report “The Prosecution of Youth as Adults: A County Level Analysis of Prosecutorial Direct File Direct in California and Its Disparate Impact on Youth of Color.”

Washburn said that the juvenile justice system is generally oriented towards rehabilitation over punishment. “When a young person is processed in a juvenile court instead of an adult one, they are more likely to have their case and life circumstances considered by a judge who has more exposure to juvenile cases and who may be steeped in a rehabilitative mindset,” she said.

And, she said, while there’s no guarantee that a young offender would be confined for a shorter period of time if tried in juvenile court, there is a higher likelihood of facing “extremely long sentences” if they are tried in adult court. “Long adult sentences are not appropriate or just for the many youth we work with who have demonstrated tremendous capacity for change and rehabilitation,” said Washburn.

According to the CJCJ report, which Washburn co-authored in 2014, direct file decisions must be made by prosecutors within 48 hours “without any information about the youth’s background, alleged participation in the offense, culpability, and capacity to grow, mature and rehabilitate.” Youth of color are significantly more likely to be subjected to direct file prosecutions than white youth. In 2015, 10.5 Black teens and 3.4 Latino teens were subjected to direct file for every one white teen who received the same treatment.

Now that Proposition 57 has eliminated the direct file rule, youth who’ve allegedly committed a serious crime cannot be directly sent to adult court by a prosecutor. They can only be tried in the adult court system if they’ve been sent there by a juvenile court judge after a transfer hearing. If the person has allegedly committed an offense before turning 18, they must be processed in juvenile court.

The same goes for youth who were recently charged as adults but have not yet been convicted. Those teenagers now have the opportunity to go through a transfer hearing process that will decide whether they can go through the juvenile court system or if they would have to continue within the adult system.

“We’re now seeing more requests for transfer cases, because essentially every young person in California, before going to adult court, they must go before a juvenile court judge,” said Washburn. “There’ve also been some cases where young people were very recently direct filed, maybe right before the passage of Proposition 57, and they have the opportunity to receive a transfer hearing for the juvenile court as well.”

Erica Webster, a CJCJ communications and policy analyst, says that some people predict that more young people moving through the juvenile courts will result in more of them being sent to a Division of Juvenile Justice (DJJ) facility, which is the highest level of incarceration that a person under age 18 can be put into once convicted in a juvenile court. DJJ was formerly known as the California Youth Authority (CYA). According to the California Department of Correction and Rehabilitation website, the DJJ “provides education and treatment to California’s youthful offenders up to the age of 25 who have the most serious criminal backgrounds and most intense treatment needs.” DJJ houses inmates at young as 12 years old.

In the past, CYA facilities have made headlines for violence that rivaled and even exceeded that of adult prisons including chronic staff-on-inmate beatings, sexual violence against youth inmates, suicides, extended solitary confinement, forcibly medicating inmates without court approval, and denial of family visits, mental and physical health care and required educational programs.

“We see the passage of Proposition 57 as an opportunity for the state to reevaluate its reliance on DJJ and critically examine just how rehabilitative our juvenile justice system is for the growing number of youth who may remain there,” said Washburn. “What’s clear to us is that DJJ’s remote location and congregate model, which brings together hundreds of high-needs youth from across the state into several large institutions, makes it difficult for the system to maintain safety and deliver effective services.”

But, as Webster points out, there are other sentencing options that could be chosen by a juvenile court judge, including county camp and ranch programs like James Ranch in Santa Clara County, or other residential programs that offer specialized mental health and substance abuse treatment. These, she said, can “address the underlying cause of a youth’s behavior.”

“Our thinking would be if you can just stay in juvenile court, there are many many, more options besides DJJ that actually address issues that youth deal with that keep them local, keep them near their family, and their support network. So those should be utilized instead of DJJ,” added Webster.

Webster said that CJCJ is predicting that in the next few years, youth crime is likely to decrease, particularly violent felonies, or the kind that would likely cause a person to be sentenced to a DJJ facility. “If those are decreasing rapidly, then the pool of youth that are eligible for DJJ is going to go down,” said Washburn.

Rates for school dropouts, violent deaths, and teen pregnancy, which Washburn classifies as high-risk behaviors, are declining among young Californians, she said. Washburn calls this generation of California youth the “safest generation on record.”

According to the California Department of Correction and Rehabilitation (CDCR), the DJJ spends over $200,000 per inmate per year. But Washburn says that the money the state is spending isn’t effective in rehabilitating people for reentry into their communities after release. In early 2017, DJJ released a report showing that 74.2 percent of youth were re-arrested, 53.8 percent were reconvicted of new offenses, and 37.3 percent had returned to state custody within three years of release.

For adult inmates, Proposition 57 was intended to increase opportunities for non-violent offenders to access parole hearings sooner than their sentences originally allowed, and to create more opportunities to earn credits for good behavior, which will increase their chances of seeing the parole board. This is expected to reduce prison overcrowding. As of May 3, the current prison population is at 135 percent of its designed capacity, according to CDCR.

According to the 2017-2018 May revision of the governor’s budget summary, an estimated 2,675 inmates have the potential to be released in 2017-2018 and 11,500 by 2020-2021 due to Proposition 57 alone.

Under the new law, inmates can earn several kinds of credits. According to CDCR website, good conduct credits can be earned by “complying with all the rules within a prison and performing the duties as assigned on a regular basis.” Educational merit credits are awarded to inmates who’ve earned a high school diploma, GED, AA or BA, or offender mentor certification that’s available at some, but not all, CDCR prisons. Milestone completion credits for work and skill development can be earned through achievements in academic, vocational and self-help programs. Rehabilitative achievement credits are also earned through self-help programs. Under Proposition 57, up to one month of an inmate’s sentence can be eliminated for participating in up to 208 hours of eligible self-help programs. 

“The spirit behind Proposition 57 is the belief that people can change their behaviors through rehabilitative opportunities,” said Vicky Waters, press secretary for the CDCR. “Under Prop 57, our responsibility is making sure we’re making those credit opportunities available to the inmates.”

Implementation of the good conduct credits started on May 1, and the others are will take effect on August 1. The new parole consideration process for non-violent offenders is slated to go into effect on July 1.

The CDCR has the ability to revoke good conduct, milestone completion, and rehabilitative achievement credits over disciplinary infractions and rules violations, but educational merit credits cannot be revoked for disciplinary reasons. All inmates, with the exception of those on Death Row and those sentenced to life without the possibility of parole, are eligible to receive credits under Proposition 57.

While most of these changes have yet to take effect, some legal observers are already hoping Proposition 57 will help reduce prison overcrowding and the overuse of prisons as punishment rather than rehabilitation programs, although they believe it will take time.

“I think it’s just the nature of policy reform work and that happens in incremental stages,” said Eric Henderson, the technology and administrative specialist at The Ella Baker Center, an Oakland-based group that advocates against the overuse of incarceration and the criminalization of people of color. “Similar to Proposition 57, when Proposition 47 passed, it didn’t do everything that folks wished it would do. But it’s definitely a step in the right direction to reform that’s needed, and we’re feeling similarly about Proposition 57.”

Voters passed Proposition 47 in November, 2014. It reduced a short list of felonies to misdemeanors; these included some drug possession charges as well as charges for petty theft, forging and bad check writing for amounts under $950. It was also intended as a way to ameliorate overcrowding by allowing earlier release for non-violent offenders.

But since the passage of Proposition 57, others are raising concerns about allowing inmates who’ve committed certain crimes to be eligible for access to the parole board. Following its passage, State Senator Patricia Bates (R-Laguna Niguel) authored Senate Bill 75, which would expand the definition of violent felonies to include human trafficking involving a minor, assault with a deadly weapon, domestic violence and rape of an unconscious person, vehicular manslaughter, arson of property, and solicitation to commit murder, among other crimes.

Unlike non-violent offenders, former violent offenders are unable to go before the before parole board to present evidence that they have been rehabilitated. Bates argued that if Proposition 57 allowed the release of people convicted of these crimes, a public safety issue could arise.

“I do not understand how anyone can say with a straight face that crimes such as assault with a deadly weapon on law enforcement should continue to be considered ‘non-violent.’ People who commit the crimes covered by Senate Bill 75 deserve to be in prison longer because of the physical and emotional harm they inflict on victims,” said Bates during an April, 2017, state senate hearing.

SB 75 was voted down in the senate’s Public Safety Committee in April but is eligible to be reconsidered in January, 2018.

A staffer in Bates’ senate office, who declined to give their name on record, said that the senator’s concern arises from wanting to take victims’ perspectives into account—knowing that they may be fearful once their offender is released—as well as the possibility of recidivism, or the person re-offending.

Henderson says that access to what’s called “positive programming”—education, self-help groups, anger management groups—within the prison system will help prevent recidivism. “If folks are making the effort to positively program within CDCR, I don’t think that it’s going to create this increase in crime,” said Henderson. “A lot of folks were saying that was going to happen after realignment and Proposition 47 [but] the research and the data does not show that. And actually, the long-term folks who are inside CDCR are statistically least likely to recidivate.”

Emile DeWeaver, a 37-year-old Oakland native and San Quentin inmate recently penned an op-ed for The Mercury News arguing for allowing parole for lifers, many of whom, like himself, are reformed violent offenders. Since he was 18, DeWeaver has been serving a 67-year-to-life sentence for murder and attempted murder.

In his op-ed, DeWeaver credits another inmate with dissuading him from joining a prison gang and saving him from more violence. Now, he wrote, “I’ve dedicated my life to stopping violence, and I learned that dedication from violent felons. They taught me that my violence as a teenager stemmed from unresolved traumas I experienced as a child.”

Inmates serving a life sentence are currently eligible for 20 percent time reduction credits that can be earned through positive programming. Other inmates with less severe sentences eligible for 50 percent time reduction credits and the ability to have credits applied retroactively for positive programming that took place prior to Proposition 57’s passage.

“Former violent offenders who are no longer violent because they’ve reformed can make communities safer,” said DeWeaver in a follow up interview with Oakland North. “If you want to know who has the power to transform neighborhoods plagued by violence, it is the reformed people who remain detained in prison.”

The final legal language of Proposition 57 is still somewhat in flux. The original document is 57 pages long and details numerous policies, procedures, requirements, qualifications and restrictions. On April 13, emergency regulations written by CDCR were approved through the Office of Administrative Law including adopting 15 sections, amending four sections and repealing six sections. The emergency regulations will remain in effect for 160 days from the date of approval. CDCR is required to publish a public notice followed by a minimum of a 45-day public comment period. On May 1, CDCR published an updated Prop 57 FAQ sheet and FAQ sheet for credit earning opportunities.

It’s unclear when CDCR staffers will submit the final regulations, because the agency can opt to use two 90-day extensions following the public comment period. Agency spokesperson Waters says they do not know if the extensions will be needed.

Still, East Bay advocates are closely watching the implementation of Proposition 57, hoping that the policy will open doors for non-violent inmates and begin a trend of moving away from incarceration. “We see Proposition 57 as a really important step in criminal justice reform work in California, and we’re encouraged to see the state continuing on a path towards decreasing incarceration and promoting rehabilitation,” said Henderson. 

CJCJ was originally listed at the Center for Juvenile Justice and has been corrected to the Center on Juvenile and Criminal Justice. Maurine Washburn has been corrected to Maureen Washburn.

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