In March of 2010, Robert Ferguson was sentenced to seven years and eight months in prison for stealing a $3.99 package of shredded cheese from the Woodland Nugget Market. For a time, Mr. Ferguson faced the prospect of spending life in prison as a third strike offender, before national attention convinced the Yolo County District Attorney’s office to treat the offense as a second strike offense.
Mr. Ferguson’s conviction and sentence are not an isolated incident in Yolo County. In November of the same year, Judge Timothy Fall sentenced Michael Caddick to seven years in prison for being the lookout in a shoplifting heist that saw him aid and abet the stealing of Chinese food, also from the Woodland Nugget.
During the summer of 2010, a man bounced two checks valued at a total of $215 and got a nine-year prison sentence. The DA in that case could have charged them separately as misdemeanors, but insisted on combining the value to enhance it to a felony.
In 2011, a Woodland man faced petty theft, with a series of prior convictions which enhanced the charge to a felony, for stealing a candy bar from the JC Penny store in the Woodland County Fair Mall.
Deputy DA Jennifer Davis argued that it should not be reduced to a misdemeanor because of his record with the other felony cases, along with the violation of probation. Judge Paul Richardson argued, on the other hand, that this was just a candy bar that was worth $2.95. There was no need for this case to be a felony. He reduced it to a misdemeanor in the interest of justice.
Earlier this year, Judge David Rosenberg, in a preliminary hearing, granted the defense’s motion allowing the court to scale down a defendant’s felony charge to a misdemeanor.
Defendant Michael Stanley was accused of felony theft of $10.62 of grocery items from the Woodland Food 4 Less. While the deputy district attorney urged that the defendant’s past thefts warrant a felony conviction, the defense argued that the defendant had no criminal intentions and only committed the crime while homeless and for his pregnant girlfriend.
The Vanguard started the Yolo County Court Watch program in 2010, and while there are a number areas of criticism we have leveled against the District Attorney’s office, perhaps the most egregious has been in the area of putting felony charges onto small petty thefts and shoplifting crimes, either through the use of petty theft with a prior or by charging that the defendant entered the store with the intent to commit a crime, thereby charging the defendant with burglary.
Milena Black, the Policy and Legislative Advocate for Californians for Safety and Justice, a non-profit that seeks to reduce prison and justice system waste, told the Vanguard that taking a case to a preliminary hearing alone costs about $1000 per case, based on research from the State Senate Appropriations Committee.
She noted that is just in court time – the fact is that this also takes up time from the public defender, prosecutor and police officers, “who have to testify that they arrested the guy for stealing a candy bar.”
“That’s over $1000 down the drain because someone stole a candy bar, that’s not a good use of our criminal justice resources,” she said. “We would rather see that money spent prosecuting someone who committed serious and violent crimes.”
Not only does Prop. 47 remove the possibility of charging someone with a third strike offense for petty theft, and remove petty theft and second degree burglary as felonies for merchandise less than $950, but now Robert Ferguson and others sentenced to lengthy prison terms are eligible to be considered for release.
Milena Black told the Vanguard in a phone interview last week, “Assuming they meet the requirements for release… assuming they meet those requirements, they’ll now face a misdemeanor charge instead.”
She noted that there are some exclusions, such as a prior for murder and rape, in which case the individual would not be eligible for release.
Misdemeanor charges tend to move through the system much quicker, as they don’t require preliminary hearings, they often get settled on the first appearance, and they have a reduced sentence. For many of these charges, as a felony the maximum penalty was three years, but as a misdemeanor it is one year.
She said, “I think the biggest changes you’re going to see are refocusing law enforcement resources on serious and violent crime. Not just warehousing people for being addicted to drugs.”
But some worry that releasing these prisoners and reducing sentences from a felony to a misdemeanor will lead to an increase in crime. Milena Black disagrees, “Every offense that was changed by Prop. 47 is literally the lowest level felony you could have, the lowest potential for incarceration, the maximum sentence is three years, but the mean sentence is two years.”
“So we’re not talking about huge reductions, people are already coming out, but they were coming out without any rehabilitative services,” she pointed out. Moreover, they are coming out “without any access to mental health services. So they were coming out just as bad as the way they were coming in. We know that California has some terrible recidivism rates.”
Sixty-five percent of people who come out of prison reoffend within three years.
“Clearly what we were doing is not working,” Ms. Black stated. “It doesn’t make sense to lock someone up for being a drug addict, not get them treatment and expect them to be better.”
She said that Prop. 47 allows the state to re-direct the money, that would have been used to lock people up, to drug treatment to hopefully stop the cycle.
Many have argued that Prop. 47 will cut the legs out of drug court by removing the incentive for people to enroll in the program. Ms. Black countered, “Drug court only works if there is treatment attached to it, and there hasn’t been any money in treatment for drug court in a very long time.”
She added, “There is not any evidence to show that having a felony hanging over somebody’s head is more effective than a misdemeanor for compelling attendance for a drug treatment group.”
She noted that other states, where drug possession is a misdemeanor, have as good if not higher treatment rates than states where drug possession is a felony.
The opposition spent a lot of time arguing that this was not going to free up the type of resources that the proponents were suggesting.
Malena Black noted, however, “It depends on how individual budgets are done.” She added, “If you have $100,000 in police officers’ time this month and some of that time has to be spent in a courtroom testifying in a case where a guy stole a candy bar, it makes sense that if he no longer has to do that” it will free up his time and resources for more serious crime.
This is the first in a series of articles that look into the impact of Prop. 47.
—David M. Greenwald reporting