Lawless California a bad example of criminal justice reform

Momentum is building across the country for various reforms in our state and federal criminal justice systems. Voices from the left and right are re-thinking minimum sentences, drug laws, and asset forfeiture rules, among others. America’s incarceration rate is being compared unfavorably to other countries.

Most agree that we need to make some recalibrations to how we handle criminal activity and prevent its spread. Some advocate changes to police conduct, while others focus on long sentences and the effect they have on encouraging the accused to accept plea bargains. There’s even a movement to make big changes to jury trials. George Will summarized some reform ideas from federal judge Alex Kozinski:

Kozinski suggests many reforms, including recording all interrogations of suspects, strictly limiting uses of jailhouse informants, allowing jurors to take notes and ask questions during the trial, and repealing three felony statutes a day for three years.

Easy fictions
There are opportunities to make our criminal justice system better, but the momentum for reform has been built on some simple storylines that are simply wrong.

  • For one, mandatory minimum sentences aren’t leading to significantly longer prison sentences. Extensive studies have shown that average sentence length has hardly increased. The biggest difference seems to be the number of felony charges being brought. That can be influenced by prosecutorial discretion, and mandatory minimums do increase the likelihood that defendants will accept an offered plea bargain. But it’s also driven, no surprise, by the number and type of crimes being committed, which is certainly not static.
  • One thing that oddly enough is pretty static is the percentage of the population that is in some sort of confinement or treatment. In a recent column on criminal justice, David Brooks of the New York Times noted: “In the 1970s, we let a lot of people out of mental institutions. Over the next decades we put a lot of people into prisons. But the share of people kept out of circulation has been strangely continuous. In the real world, crime, lack of education, mental health issues, family breakdown and economic hopelessness are all intertwined.”
  • You would think, from listening to some activists, that our prisons are chock-full of people sentenced for simply possessing illegal drugs. This clearly isn’t the case. In state prisons, which house the vast majority of the nation’s inmates, only 16% are in on drug charges. Of those, most were convicted of trafficking. Heather Mac Donald wrote in City Journal: “In 2013, only 3.6 percent of state prisoners were serving time for drug possession, often the result of a plea bargain, compared with 12 percent of prisoners convicted for trafficking. Virtually all the possession offenders had long prior arrest and conviction records.”

In reality, the biggest growth in the prison population is in inmates found guilty of violent crimes. Not surprisingly, the public is a lot less keen on letting these inmates out early. David Brooks again: “Some politicians and activists suggest that solving this problem will be easy – just release the pot smokers and the low-level dealers. In reality, reducing mass incarceration means releasing a lot of once-violent offenders. That may be the right thing to do in individual cases, but it’s a knotty problem.”

California shows what not to do
As leaders and criminal justice reform activists grapple with how to change the system, they should learn from California how not to go about it. Voters there passed Prop. 47 in 2014, and almost immediately crime increased. Heather Mac Donald explains the ballot measure:

In November 2014, voters passed Proposition 47, a ballot measure to reclassify retroactively many drug and property felonies as misdemeanors. All thefts under $950, including of someone’s car or of an illegal gun, or yanking a handbag or laptop from someone’s hands, would now be a misdemeanor, which can be punished, at most, only by time in jail, not prison. In fact, misdemeanor convictions only infrequently yield jail time. Misdemeanor offenders are not put under probation or parole supervision in the community, which means that they are not subject to search by probation officers; they cannot be ordered into drug treatment.

The consequences of downgrading many crimes to misdemeanors and instituting “cite and release” are plain. Violent crime rose 20% in L.A. Property crimes rose 43% and robberies were up by 89% in Santa Ana. In San Francisco, violent crime went up 13% and property crimes by 22%. The same story is being told in cities across California.

“More drug treatment, less jail” sounds appealing, but removing the possibility of jail or prison time means fewer people in drug treatment. Addicts want to continue feeding their addictions. For many, the stark choice – stick to your drug treatment or go to jail – is the only reason they stay in treatment programs. If you take away the stick, they have no interest in the carrot.

A haunting and fascinating report in the Washington Post attempted to track one low-level criminal and addict in California after Prop. 47’s enactment. The man had numerous interactions with police, but because none of his offenses rose to the felony level, these interactions didn’t bring him any closer to the treatment he needs. Under California’s changed laws, authorities have no way of forcing him into treatment.

The Post shared the perspective of San Diego’s City Attorney Jan Goldsmith:

He had served as a judge before becoming the city’s top prosecutor, and for a while he had presided over San Diego’s alternative drug court. That was a system that seemed intuitive to him — a logic he could easily explain to addicts from the bench. Get caught with drugs once and maybe you would only get charged with a misdemeanor. But by the second time, or certainly the third, the charge became a felony and most offenders were faced with a choice: Go to state prison or participate in drug court, which usually meant at least 18 months of mandatory drug testing, treatment and supervision under the constant threat of prison time. Many chose drug court and entered into treatment. Sixty percent of those who enrolled graduated. Seventy percent of graduates stayed out of trouble for at least three years.

“I don’t know many addicts who magically wake up and say, ‘Hey, I want help,’ ” Goldsmith said. “They have a terrible, horrible disease. They’re addicted to drugs. Often times, they’re stealing to buy those drugs. You need consequences. They don’t get better on the honor system. You need to nudge them, shove them, kick them in the door.”

But now more addicts were declining drug court, because spending a few days in jail on a misdemeanor charge was easier than 18 months of intensive rehab. Without the threat of a felony, there was little incentive to get treatment.

Prop. 47 was an attempt to hit “reset” in California’s approach to criminal justice. It has taken tools and options away from prosecutors, however, with crime spikes being the obvious result. Promises of more drug treatment are pretty empty when there’s no way to compel the people who need help to attend.

We should all learn from California’s negative example. A compassionate system doesn’t leave people to their own demons – and law-abiding citizens to more property crimes, more violent crimes, and further frayed neighborhoods – in the name of reform.
-Rob McKenna

The following two tabs change content below.
Rob McKenna
Rob served two terms as Washington’s Attorney General, from 2005 to 2013. He successfully argued three cases before the U.S. Supreme Court and negotiated three of the largest consumer financial protection settlements in national history, all involving mortgage lending and servicing. He is a recognized leader in the development of consumer protections on the internet, in data protection and privacy regulation.