Counties differed widely on strike offenses

by Brian Leubitz

Prop 36 made some pretty logical tweaks to California’s Three Strike policy, and will hopefully eliminate some of the worst injustices that have resulted. But it is worth a look back to see how that policy went awry. The Chronicle took a look at the SF Bay Area counties for some background:

Of Bay Area counties, Santa Clara County had by far the most inmates become eligible for more lenient terms because their most recent convictions were for offenses that weren’t serious or violent. San Francisco, by contrast, had three.

It’s an indication that the three strikes law that California voters originally approved in 1994 hasn’t been enforced evenly among counties in the Bay Area or throughout the state. In some places, defendants whose third strikes were minor – in extreme examples, for stealing a bicycle or even a pizza – were more likely to have the book thrown at them. (SF Chronicle)

They also have a nice graphic if you go to that link, but the bottom line was that Santa Clara had 120 non-violent three strikes prisoners, while San Francisco, Alameda, and Contra Costa didn’t even hit 20. The original measure and the associated criminal justice processes gave prosecutors some discretion on how to charge, and whether an offense would count as a strike. And, rather unsurprisingly, they came away with very different results.

Steve Cooley, the now retired LA County DA that strongly supported Prop 36’s passage pointed out just this issue. Santa Clara wasn’t particularly special, there was a large variance between the counties across the state, not just the Bay Area.  And new Santa Clara DA Jeff Rosen endorsed the measure. But the disparity was a perverse outcome of the law, and hardly compatible with the fair administration of justice.

Prop 36 just passed a few months ago, and the process to review the sentences is just playing out now. And the Chronicle article has a good description of how that’s proceeding for the time being in Santa Clara. Prop 36 was a good start and, with time, we should get a better idea of how the system is going to work out.

California still has a lot of work left to do on the more general question of sentencing reform. (Take a look at a recent report from the Sentencing Project to see how 2012 broke down nationally on that subject.) But maybe the people of California are ready to lead the way.

By Allen Hopper, ACLU of Northern California

The revised California budget is out and sentencing reform is, well, left out. In his revised budget Gov. Brown recommitted to his criminal justice realignment plan, but didn’t include any sentencing reforms that would help ensure that the plan is effective and affordable. Realignment reserves state prison for people with the most serious offenses and redirects people with low-level offenses to local control. This is a step in the right direction but it leaves a key piece of the puzzle missing: we should convert minor offenses from felonies to misdemeanors so that the punishment and its associated taxpayer cost fit the crime.

Two reforms alone would save the state hundreds of millions annually while keeping communities safe: making possession of a small amount of drugs for personal use a misdemeanor instead of a felony and making low-level, non-violent property offenses–like vandalism or writing a bad check–a misdemeanor. These sentencing reforms also help lower the cost of realignment. By making low-level offenses misdemeanors instead of felonies, we decrease costs because sentences are shorter and court costs are lower.  

California spends hundreds of millions of dollars every year locking people up for minor offenses when they pose no threat to public safety. We can save money and keep our communities safe by reserving felony sentences for serious crimes. In addition to their high costs, felonies should be reserved for serious crimes because they impose lifetime obstacles to employment, housing, education, and public benefits.

We recently asked voters what they thought, and the results were striking. A solid majority of Republicans, Democrats and Independents from every corner of the state believe that too many people are imprisoned and that penalties for minor offenses are too harsh. Nearly three-quarters (72%) of likely voters support reducing the penalty for simple possession of a small amount of drugs for personal use. (We commissioned the poll along with Drug Policy Alliance and the Ella Baker Center for Human Rights. The full results and analysis are online.)  

At the end of the day, the time should fit the crime. (Just a few weeks ago a man was charged with a felony after stealing a $2.95 Godiva candy.) Realignment is a promising good first step. The legislature and Governor have recognized, through the realignment plan, that low-level crimes don’t merit sending people to state prison. Now, let’s realign our sentencing laws: felony sentences should be reserved for serious offenses that truly threaten public safety.  

I’ve spilled quite a few pixels on sentencing reform in these virtual pages, but nothing brings home the fact that our system is seriously f’d up like a personal story. Yesterday, Steve Lopez of the LA Times gave us just that in his story entitled “Stolen Lightbulb Casts Only Darkness”. I highly recommend that you read the entire article, as it is a powerful personal tragedy on so many levels.

Mark Smith, a 51 year old, HIV-positive man has been in the LA County jails for the last six months.  For what, you ask? Well, he stole a lightbulb. An expensive one: $10. The fact that he had $180 in his pocket and that he had paid for everything else didn’t much matter. It was a parole violation, and a deputy commissioner for the parole board sent him back to the Big House.

Smith’s story, of course, is longer than can be summarized in a paragraph. And, it is clear that Smith made some bad decisions. He was convicted of felony murder for being at a drug deal gone bad. In 2000, after serving 17 years, Davis was deemed ready for parole, but Gray Davis, in his infinite wisdom, was in his ToughOnCrime^TM phase. So, to show how tough and strong he was, Davis denied the parole. But in 2003, the State Supreme Court gave Davis the middle finger (right before the people of California did the same), and told him that Mark Smith did not belong in prison anymore.

But now, he goes back to prison. A man suffering form AIDS-related dementia will now be left to the whim of the prison health care system. (although…at least it’s free, I suppose…but wait…oh, now the state pays for it.) A man who is no longer even physically capable of committing a violent crime is now in jail. For stealing a lightbulb.

What is the solution? I don’t know, but clearly what we have now is not the answer.  SB 40 wouldn’t even answer this question, as it is in the hands of the parole board not the judiciary.  And, anyway, SB 40 would likely be struck down as unconsitutional, or at least that’s the opinion of SF public defender Jeff Adachi in today’s California Progress Repor.

At some point, instead of nibbling at the edges (what SB 40 does) we will have to rebuild from the ground up.  The parole system, sentencing are not separate systems, or at least they shouldn’t be considered that way.  They are interrelated and each component can’t be taken in a vacuum. Listen, I really, really appreciate what Sen. Romero is trying to do. At least she has the courage to address such a tough issue, which is far more than I can say for most of the Legislature. And no Asm. Spitzer, just spouting platitudes of how you are ToughOnCrime^TM does nothing to solve the problem.  I suppose you can spout those for a few more years until you fade into the oblivion of the lobbying industry, or whatever you choose to do after term limits strike.  So, spout whatever nonsense you choose, but somebody, sometime soon, is going to have to do something about our prisons.

At the end of the last session, Fabian Nunez mentioned that sentencing reform wasn’t off the table.  Hardly a glowing endorsement of a process which we desperately need, but it’s a start.  After the remarks of the federal court’s prison health receiver, Robert Sillen, that he will do whatever is necessary to bring the health system into compliance with the federal court decision, we need to realize that it’s desperate action time.  We need to a)reduce prison population AND b) increase capacity.  Hopefully, the bonds will enable us to acheive the capacity part.

The reduction of prison population is a more difficult question.  Shipping inmates out of state is really only a temporary solution, and a dumb one if you ask me.  We simply have way too many people in prisons. We have over 150,000 prisoners, and we are at over 180% of capacity.  That’s just too much.  Our current sentencing process undervalues the process of rehabilitation.

Well, today, it seems that the Schwarzenegger administration is actually taking sentencing reform seriously:

Facing a double whammy of a population cap and a court decision that threatens to wipe out the state’s sentencing law, the Department of Corrections and Rehabilitation is considering a sentencing commission that would help decide who goes to prison and for how long.

“We are willing to engage in sentencing reform,” Corrections Secretary James Tilton said in an interview with The Bee, adding that as part of the discussion, the Schwarzenegger administration is looking at establishing a sentencing commission. Such panels take different forms but can allow states to manage prison populations by altering the approach to sentencing. (SacBee 11/20)

About damn time.  This concept has failed on gubenatorial vetoes and in initiatives in the past, but at some point we are going to have to work together to actually find long-term solutions, rather than short-term band aids.