Reforming California’s Criminal Justice Reforms

Image for post
Image for post
Photo Credit: TED Talks

Criminal Justice In California: The Way It Used To Be

From the 1960’s through the early 1990’s, many neighborhoods in California saw a sustained rise in crime. Whether we’re talking about burglary, robbery or murder, things were consistently getting worse, pretty much every single year.

While virtually every neighborhood saw an increase in crime during this time, some communities were absolutely devastated. In southern California, Compton, Watts, and most of South Central Los Angeles, faced astronomical levels of violent crime, particularly in the mid to late 1980’s, through the early 1990’s.

In large part, this was driven by the crack epidemic and accompanying gang violence, which left behind a trail of broken lives and shellshocked neighborhoods. In more affluent corners of the state, high profile incidents like the 1988 murder of bystander Karen Toshima in a gang shooting just blocks from UCLA shocked the public. However, such horrific violence was a regular occurence in poorer areas — and often overlooked by the rest of society.

As crime spiked to unprecedented levels, Californians, both citizens and politicians, began pushing for aggressive action to curb the chaos. In 1986, Rose Bird, the Chief Justice of the California Supreme Court justice, was recalled by voters. During her tenure, Bird was a staunch opponent of the death penalty, voting to overturn all 61 capital cases which came before the court during that time.

In 1990, Pete Wilson, who at the time served in the US Senate, was elected governor. Wilson ran on a tough-on-crime platform, and stayed true to form, signing Assembly Bill 791, popularly known as the 3 Strikes law, in March 1994. The 3 Strikes Law increased prison sentences for repeat violent offenders.

Under this law, if a defendant had at least one prior “serious or violent felony”, and was now facing a second felony conviction, they’ll face a sentence which is double what they otherwise would, for the same crime. Let’s say a defendant with a prior robbery conviction (a violent felony), is now convicted of a second robbery (for which they might normally face a 5 year sentence). The defendant would now face a 10 year sentence.

If the defendant had two prior serious or violent felony convictions, then for a third felony conviction, a defendant would face up to a life sentence in prison. It is important to note that the second or third strike did not have to be a serious or violent felony, to warrant an increased sentence. Also, probation, diversion and other means of reducing sentences were not available for those convicted

A smaller felony, committed by a defendant with a series of more serious convictions, could result in a life sentence. One highly publicized case of this was the so-called “pizza thief”, a repeat felon who recieved a life sentence for snatching pizza from a group of children. While the sentence in this case was eventually reduced, for many, the case served as a cautionary tale of the excesses of the 3 strikes legislation.

Even prior to the passage of 3 Strikes legislation, California outpaced all other states in terms of the growth of prison population. During the 1980’s, the state’s prison population grew by 263%.

After the passage of 3 Strikes, some analysts predicted that the state’s prison population would explode, with more than 100,000 additional inmates incarcerated. However, that did not happen — some analysts attribute this to laxer sentences by judges and prosecutors.

Research suggests that a bit more than half of all “strikers” (those incarcerated under this law) were convicted of non serious or nonviolent crimes, although strikers also tend to have more serious criminal records (on average) than the typical inmate. 3 Strikes also increased the time which the typical inmate serves in prison, and increased the age of the average inmate (a trend which is reflective of the US population more broadly).

California has passed a variety of criminal justice reforms in recent years. Proposition 36, which was approved by voters in 2012, modified 3 Strikes. Proposition 36 requires (in most cases)that the third felony conviction be serious or violent (with some exceptions). If someone were convicted of a non-violent, non-serious offense involving sex, drugs or firearm possession, this could still be counted as a third strike. Also, if any of the prior convictions were for rape, murder or child molestation, then the third strike did not have to be violent or serious — a life sentence could be imposed anyways.

In 2018, California implemented an even more momentous change, by becoming the first state in the country to end cash bail for suspects awaiting trial. Cash bail was replaced by an algorithm which would decide whether a suspect should be granted bail. The legislation was initially supported by criminal justice reform organizations. However, some of these groups later turned against the legislation, in part because they were skeptical of the use of algorithms for making bail decisions.

How Proposition 47 Relaxed Enforcement of Smaller Crimes

In 2014, California voters passed Proposition 47. This legislation reduced some felonies to misdemeanors, including shoplifting, grand theft, receiving stolen property, forgery, and writing bad checks, if the amount involved does not exceed $950.

People who were sentenced for these crimes as felonies in the past, were eligible to be resentenced. If in the past, a defendant was convicted of murder, rape (and some other sexual offenses), or a gun crime, they would not be eligible for reduced sentencing under this law.

Proposition 47 also reduced penalties for possession of illegal drugs (to a misdemeanor), when such drugs were primarily for personal use. Drugs which were possessed for sale did not fall into this category.

In the years after the passage of Proposition 47, California has seen a substantial uptick in vehicle break-ins, known as “smash and grab” burglaries. According to the Independent Institute, from 2007 to 2014, vehicle break-ins fell by about 24 incidents per 100,000 residents — which amounted to roughly 9500 fewer vehicle break-ins each year.

However, break-ins jumped quickly after Proposition 14 passed, in late 2014. In 2015, the rate of burglaries increased by about 15% from the previous year, and rose again slightly in 2016. Rather alarmingly, thefts were 21% higher than what would have otherwise been expected (in 2015), and 27% higher in 2016. This translates to 51,000 more thefts throughout California, just in 2016.

Shoplifting has also increased precipitously. In the five years preceding the passage of Proposition 47 (2009 to 2014), there were an average of 248 shopliftings per 100,000 residents. This figure jumped by more than 11% in 2015 — the first year after the repeal of Proposition 47. This translated into 279 shopliftings per 100,000 residents, or 11,000 more incidents of shoplifting throughout the state.

Starting in 2016, numbers started to drop again. Some attribute this to a belief on the part of crime victims, that these offenses will not be prosecuted. Michael Rushford of the non-profit Criminal Justice Legal Foundation, argues that while more of these crimes are being commited, they are being reported less. Rushford argues that since law enforcement is not focused on enforcing such crimes, for many citizens, it isn’t worth the time and effort required to report these incidents.

John Romero, an LAPD captain who focuses on commercial crimes, also notes that much of shoplifting is conducted by organized groups of thieves, rather than just misguided individuals. Law enforcement leaders elsewhere in the state also attribute the increasing impunity of such theft rings, due in part to the lax penalties faced by perpetrators.

California isn’t the only state dealing with these issues. In Oregon, Portland retailers complain of persistently high levels of theft, and argue for greater action by police. In Seattle, similar complaints abound, with some businesses losing thousands of dollars each week to theft.

Reforming Proposition 47 While Maintaining Fairness

Where does all of this leave us? Clearly, it doesn’t make sense to impose massive penalties on relatively minor crimes, such as shoplifting or vehicle break-ins. Punishment must be proportional to the offense.

What’s more, we do need to be mindful that drug use and possession, while undoubtedly harmful, should be treated not just as a criminal law matter, but also as a public health issue. Focusing solely on incarceration of those addicted to drugs is not a real solution.

With that said, issues like break-ins and shoplifting have a serious impact on the quality of life for all citizens. Stores which face too many incidents of theft are forced to either adopt more security measures (raising costs for customers) or close shop.

High levels of such crimes not only reduce quality of life, but might lead to people moving away from certain neighborhoods, in order to avoid these nuisances. Ultimately, this weakens communities.

It’s also worth noting that in less well off areas, there is often a serious lack of quality retail establishments. Theft raises the cost of running such establishments, and ultimately makes them less affordable — to those who can least afford higher prices.

Proposition 47 appears to be well-intentioned. At the same time, it overlooks the very real costs of seemingly minor crimes, by downgrading shoplifting, grand theft and receiving stolen property from felonies to misdemeanors. .

We should once again treat these crimes as felonies — but only for second time or other repeat offenders. First time shoplifters of under $950, those who just made a mistake, should not face jail time, or a felony on their record.

However, if an offender is caught engaging in the same behavior again, then it seems fair that they should serve at least a few months in jail. We should change guidelines to recommend jail time for additional offenses. Sentences should become longer for each successive conviction, and be capped at one year in prison.

I firmly believe such incarceration (and our justice system more broadly) should place a far greater emphasis on rehabilitation, and helping people change their lives. This has been the subject of many articles (and lengthy books), but it bears repeating.

With drug offenders (and many of those who engage in other crimes are addicted to drugs), this becomes a trickier dilemma. Aggressive criminalization of nonviolent drug users was a notable mistake of the “tough on crime” era, and it would be a monumental error if repeated today.

However, it’s also crucial to ensure those addicted to drugs get the help they need, so that they may break the destructive cycle of addiction. Prison, as traditionally understood in the United States, places far too little emphasis on rehabilitation and reentry into society.

With individuals who have persistent substance abuse issues, it is far wiser to spend a dollar on treatment today, than have someone rotate in and out of prison. For this reason, we should require anyone convicted of a crime involving drug possession (without intent to distribute), to enter a drug treatment program. Those who take plea deals (most offenders) should be strong encouraged to enter such programs.

Drug treatment can be conducted outside of prison, but should be an in-patient, intensive treatment program, followed with extensive support outside of prison. Given the correlation between drug addiction and homelessness, as well as petty crimes like theft and car break-ins, society as a whole benefits from improving the lives of those struggling with drug addiction. Funding for drug treatment programs must be increased to reflect these realities.

For the first drug possession conviction, courts should require mandatory attendance in a rehab program, outside of prison. This must be followed up with intensive support and monitoring, including transitional housing, counseling and job training.

The drug court program offers an excellent alternative to incarceration, providing both job and educational training, as well as treatment to help stem addiction. Since drug convictions were traditionally treated as felonies, drug court made sense, instead of being sent to prison. We should change the requirement that drug court require a felony conviction, and instead allow those convicted for a misdemeanor (which is how drug possession is typically treated now) to participate.

Drug addiction should be treated like the public health crisis that it is. One benefit of Proposition 47 is that it has freed up a lot of money (once spent on incarceration) for treatment, and has already helped implement a variety of creative initiatives.

For later offenses, however, we ought to make some sort of detention mandatory, ideally for a period of at least 4 months, followed by a longer rehabilitation period, ideally in a full-time transitional facility outside of prison. This helps ensure that those facing addiction really do participate in meaningful recovery efforts, in a supervised environment.

Traditional incarceration for these offenders also needs to be reimagined. Those with drug addiction issues should be placed in a separate, lower security detention facility (or a completely different wing within existing prisons), which is designed exclusively for those battling addiction. These individuals should not be mixed in with the broader prison population.

The overriding focus here is helping people break their drug habits. We need an intense focus on helping people change their behavior — for the long term. I recognize this will cost money, but given the massive societal costs imposed by drug addiction, it is absolutely worth it.

Proposition 47’s lack of potential incarceration for those with drug issues is a real shortcoming. It is absolutely possible for someone who was never incarcerated, to fail to report to a treatment facility, and quickly go back to the streets. They’ll continue life as they have in the past, and lose out on a meaningful chance to change.

Being placed in a position to face one’s demons head-on, with little chance of escape or other distractions (at least for a little while), is ideal. Anyone suffering from addiction deserves the opportunity to break free. In some cases, prison is simply the best place to initially facilitate this, especially if someone has already been given a chance at non-prison rehabilitation, and did not succeed.

More effective drug treatment will also impact theft and other Proposition 47 offenses. Given the correlation between drug abuse and shoplifting, theft and other crimes, helping people stop using drugs will probably result in fewer incidences of related crimes.

The Path Forward

When it comes to crime, we’re not living in the California of a few decades earlier. Our state has turned a corner on violent crime. There is no reason to return to the harsh incarceration policies of those days.

At the same time, Proposition 47, as currently structured, is too lax on property crimes and theft. This inflicts real damage on individuals, businesses and quality of life in so many communities. It also doesn’t do enough to meaningfully help those addicted to drugs break free of controlled substances. Sometimes, incarceration (with a focus on treatment) is part of the solution.

Enjoy reading and writing about technology, law, business, politics and more. An attorney by training, I’m a native of Los Angeles, and a former New Yorker.

Get the Medium app

A button that says 'Download on the App Store', and if clicked it will lead you to the iOS App store
A button that says 'Get it on, Google Play', and if clicked it will lead you to the Google Play store