Last week voters overwhelmingly approved Proposition 47, which reduces drug and petty theft crimes to misdemeanors. On Monday, the Vanguard noted the impact of Prop. 47 on the Yolo County DA’s practice of charging small petty thefts as felonies no matter how small, if they can justify it based on past record.
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.
“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.”
In a local op-ed, Yolo County Public Defender Tracie Olson wrote, “For decades, California has relied on the mass incarceration of its offenders as the answer to crime control, no matter the crime.
“By 2011, state prisons were so overcrowded that the U.S. Supreme Court found that the problem amounted to cruel and unusual punishment, violating the Eighth Amendment. The problem of prison overcrowding persists today while California taxpayers spend upwards of $60,000 to house a single inmate in state prison for one year.”
The question is does Prop. 47’s passage end mass incarceration? The Vanguard spoke to San Francisco Public Defender Jeff Adachi, the only elected public defender in the state.
“It’s huge,” Jeff Adachi told the Vanguard. “We estimate as many as 10,000 cases may be affected.”
“What Prop. 47 does is declare certain categories of low level felony crimes to be only misdemeanors. Many of these crimes were what we referred to in legal jargon as wobblers – meaning that the case could be charged by prosecutors either as a felony or misdemeanor,” he explained.
Possession of most controlled substances, prior to Prop. 47’s passage, is considered a felony. It is now a misdemeanor for all purposes. For petty theft and forgery, so long as the value of the crime involved is less than $950, it will be treated as a misdemeanor.
What this means is two things, Jeff Adachi said. First, “The prosecutors will no longer have the discretion to charge these crimes as felonies.” Going forward, “most of the changes will occur at the charging stage.”
People who have already been convicted of felonies – possession, petty theft with a prior, forgery – “these crimes would qualify to be reduced to misdemeanors provided certain conditions were met.”
“Any case where the person was tried and convicted of any of the Prop. 47 offenses as felonies, they can apply to have that reduced to a misdemeanor,” he said, stating that if the person was convicted of a serious and violent felony previously, they would be unable to be released. These are limited to murder and serious sexual assault crimes.
Jeff Adachi disagrees that this will create an increase in crime. He said, “The same argument was made about realignment; actually we’ve seen crime rates plummet in most counties with the release of people who were in the state prison system to local counties.”
He noted, “A person who is charged with these offenses still faces up to one year in the county jail, which is a significant penalty. However, they don’t suffer the consequences of being convicted of a felony.”
Mr. Adachi pointed out, “Studies have shown and certainly my experience is that when the person is convicted of a felony, it’s much harder for them to lead productive lives. It creates a disincentive to hire the person for a job and makes it difficult for them to qualify for public benefits.” He added, “This is a step in the right direction.”
“What this does is it allows people who are charged with low-level offenses to [have the offenses] treated as misdemeanors,” he continued. That means instead of prison time, they would get a county jail sentence where “many of the rehabilitative services are available to misdemeanor and not felony clients.”
Moreover, Prop. 47 “takes the money that would have been spent incarcerating low-level offenders and instead invests that money in education, rehabilitation and victim services.”
That money would be set aside and left up to each county to decide how to use that money. He explained that San Francisco, where he works, already has a lot of programs. He believes that San Francisco would use that money to create additional treatment slots for people in drug treatment programs.
The key thing, he said: “If you treat the core cause of criminality, the person won’t come back.”
So does this mark the end of mass incarceration in California?
“It’s the beginning,” Jeff Adachi stated. However, he mentioned that there are many other reforms that need to be put in place.
“Unfortunately, in California we have not had comprehensive sentencing reform,” he said. “We tried to push the governor to form a sentencing commission that could make binding recommendations as to how the sentencing laws could be changed.”
Governor Brown, during his first term as governor, presided over reform of the penal code and determinative sentencing, which Jeff Adachi argued “in many ways put us in the situation that we’re in now.”
“I’m hoping that the governor, in particular since he’s in his second term, is going to focus on sentencing reform,” Mr. Adachi added.
Last spring at his annual Justice Summit, one of the panels had a discussion on bail reform, which Jeff Adachi argues is needed to clear up a clear-cut bias in the system.
“The presumption of innocence in this country is meaningless because for most of our clients who are poor people, they are incarcerated pending their trials,” he said. “It places much more pressure on them for innocent people to plead guilty. It creates a disincentive for cases to be fully investigated and litigated.”
“It’s also unfair because people who are released from jail are simply those who have money. You can get out on bail if you’re charged with murder if you have the money,” he said. “And yet if you’re charged with criminal trespass, and you don’t have $500 to post bail, you’re going to be in jail.”
Jeff Adachi believes we need to move away from money bail and implement the types of reforms that New Jersey and Maryland have instituted.
He said in San Francisco, they are litigating every case where their client might be eligible for bail “because we feel that under the law, clients are entitled to a full bail hearing.” He added, “Judges have to understand what presumption of innocence means.”
In San Francisco, 85 percent of the jail is filled with people in pretrial custody, awaiting their trial. In many cases, these are people who will never be sentenced to additional custody as the disposition of their case.
Another problem with bail, Mr. Adachi indicated, is that they are unequal across county lines. He cited that in Santa Clara the bail for assault is about $10,000. “In San Francisco, the bail for the same crime is $75,000,” he said. “So you have these huge disparities in the amount of bail.”
This is the second in a series of articles that will look into the impact of Prop. 47. Tomorrow’s segment will examine how Prop. 47 will impact things on a local level.
—David M. Greenwald reporting