On Monday, the Vanguard ran a column called “Scare Tactics and Prop. 47.” We noted that, while it reduces over-incarceration for largely petty and non-violent offenses, there are concerns, particularly the elimination of Penal Code section 487(d)(2) which mandates an automatic felony for the theft of a handgun.
The column also demonstrated that, for most intents and purposes, the proposed Penal Code section 490.2 would require all thefts valued at less than $950 to be a misdemeanor, but there are gray areas that make that unlikely for the theft of a handgun.
We were fascinated to read a piece published in the Enterprise by Placer County Judge J. Richard Couzens. One might recognize Judge Couzens as the father of Yolo County Deputy District Attorney Ryan Couzens, who has had an interesting history on the Vanguard.
Judge Couzens, having served as a trial judge for over 37 years, writes, “I share in the laudable goal of Proposition 47 to reserve prisons for violent and serious offenders and to make funding available for treatment and crime prevention.” However, he argues, “voters must understand that passage of Prop. 47 on the Nov. 4 ballot will have serious consequences, some of which may adversely affect public safety.”
He writes, “Under current law, people who commit three or more prior theft offenses with a term of custody imposed as punishment may be prosecuted as a felon. Prop. 47 eliminates the crime of ‘petty theft with a prior’ except for a narrow group of people excluded from the act.”
He adds, “The initiative makes simple possession of concentrated cannabis, methamphetamine, cocaine and heroin a misdemeanor. Substance abuse rarely arises overnight and certainly cannot be effectively treated overnight. The progress to recovery frequently is ‘one step forward, two steps back.’ ”
Length of probation is an important difference in felony versus misdemeanor sentencing – five years for felonies and three years for misdemeanors. The judge writes, “The two-year reduction in probation supervision will significantly interfere with treatment of the seriously addicted. The premature release of these people from supervision only sets them up for failure.”
The problem with the judge’s analysis here is that there is no evidence that the current system actually works to get people off of drugs. So, it is not as though we are taking a successful but expensive program and ending it.
The judge argues, “The benefits of reduced sentencing are not available to people convicted of a registerable sex offense, a crime related to murder and a few other limited crimes. However, they are available to people who have prior convictions for dangerous crimes such as kidnapping, assault with a firearm, robbery, arson, gang activity, residential burglary and domestic violence with great bodily injury. The inability to prosecute these people as felons will reduce their accountability and increase the risk to public safety because of reduced probation supervision.”
He continues, “Prop. 47 allows people already sentenced as a felon to be resentenced as a misdemeanor if they would have been eligible for misdemeanor sentencing under the new law and are not an ‘unreasonable risk of danger to public safety.’ Prop. 47 only allows judges to find ‘dangerousness’ if the person likely would commit a registerable sex crime, a crime related to murder, or a few other specified crimes. Resentencing would be required for people likely to commit many other dangerous crimes.”
The latter sentence is a point in dispute, where proponents of the law argue that judges would have sufficient discretion to avoid resentencing of people who committed a variety of “dangerous crimes.”
Judge Couzens continues, “Most significantly, Prop. 47 expands the resentencing provisions under the three-strikes law. Prop. 36, enacted by the voters in 2011, permits resentencing of certain strike offenders, unless to do so would create an ‘unreasonable risk of danger to public safety.’ Broad discretion was given to judges to determine who would pose such a danger.”
He adds, “Prop. 47 imposes its more restrictive definition of dangerousness on people sentenced under the three-strikes law. People now serving a third-strike sentence will be allowed to submit a request for resentencing under the more liberal provisions of Prop. 47, even though a judge has already determined they are too dangerous to get relief under the existing law.”
He continues, “The resentencing provisions of Prop. 36 apply only to people serving a 25-years-to-life third-strike sentence under the three-strikes law. Prop. 47 would extend resentencing to second-strike offenders covered by the act. Relief could be denied only if the court found the person was dangerous under the proposition’s very narrow definition.”
“Finally,” Judge Couzens says, “the treatment and crime prevention fund created by the act is illusory. The initiative directs the director of finance to ‘calculate the savings that accrued to the state from the implementation of’ the act from the current fiscal year as compared with the preceding fiscal year.
“Other than the requirement to use current data ‘or best available estimates,’ there is no specified method for calculating the savings. It is naïve to believe that in these difficult financial times, state government will willingly divert significant ‘savings’ to this ill-defined fund.”
Judge Couzens concludes, therefore, “Although the objectives of Prop. 47 are laudable, voters must determine whether this initiative is the proper way to reach those objectives.”
Darrell Steinberg and Rusty Selix
Outgoing California Senate President Pro Tem Darrell Steinberg and Rusty Selix of California Council of Community Mental Health Agencies have a different perspective, arguing that “when it comes to mental illness within our criminal justice system, the facts tell a damning story – one for which we must rewrite the ending.”
They argue that Prop. 47 can “help rebuild our mental health and community infrastructure by reducing waste in the very place – prisons – that has swallowed up those resources over the years.”
They cite a Stanford Law School report from earlier this year, saying that “the number of mentally ill people in California prisons doubled from 2000 to 2014; currently 45 percent of prisoners have been treated for mental illness within the past year.”
They continue, “The study also echoed findings by the U.S. Justice Department that mentally ill inmates in state prisons serve 15 months longer than other inmates on average. Such inmates are also stuck, without treatment, in cycles of crime and incarceration. A study in Los Angeles County found that 90 percent of jail inmates who had been incarcerated two or more times had serious mental health problems.”
They argue, “All this adds up to an incredibly expensive and ineffective approach to both public safety and public health.”
“So how did we arrive at this crisis?” they ask. “From the 1950s through the 1970s, California passed laws to move responsibility for mental health care from large state institutions to a model of local, community-based care. But there never was any follow-through to ensure that infrastructure was created and supported.
“As local and state leaders battled over other budgets priorities, mental health beds vanished and nothing materialized at the local level. As a recent example, California cut 21 percent ($586 million) from mental health programs from 2009 to 2012 – the most in the nation – according to the National Alliance on Mental Health.
“By failing to invest in local treatment and recovery options, it is, sadly, no surprise that people with mental health needs have ended up in our jails, courts and prisons,” they argue. “And while there needs to be accountability for crimes, warehousing mentally ill people in our prisons – forcing them to live in crowded, violent and solitary conditions – does not address the underlying factors of their behavior. In fact, California is currently under a federal mandate to reduce prison crowding partly because of a lawsuit about inadequate mental health care.”
They write, “If our goal is to change behavior, then accountability must take into account how to prevent future harm. In other words, treating mental illness is not simply a moral obligation but also a public safety strategy.
“Growing consensus for such a strategy inspired us in 2004 to author the California Mental Health Services Act, a successful voter initiative that produced $7.4 billion for mental health needs and that served 400,000 Californians within its first five years,” they continued.
“We are awed by the impact, but 10 years later we still have far too many people with mental illness cycling in and out of our prisons and jails – and far too much taxpayer money locked in that same system.
“That’s why we support Proposition 47, along with the California Psychiatric Association, some law enforcement officials, crime victims, business leaders and many others.”
Senator Steinberg and Mr. Selix argue that Prop. 47 “would provide $50 million to $100 million each year for mental health and drug treatment. It would do so through reduced prison costs, specifically by categorizing six nonviolent, low-level felonies as misdemeanors (e.g., drug possession, petty shoplifting and writing a bad check) that can be addressed with county jail terms, treatment requirements and other forms of accountability.”
They conclude, “We cannot change the troubling facts about California’s recent approach to mental health, but we can change course to create a more humane, effective justice system. Passing Proposition 47 is an important step in that direction.”
—David M. Greenwald reporting