Consider the following scenario: A man walks into a 7-Eleven store with the intent to steal and walks out with a loaf of bread, a bottle of wine, and a bar of soap that he didn’t pay for. He gets arrested and charged with second-degree commercial burglary. It was known as a wobbler crime; it could be a felony or a misdemeanor, depending on the perpetrator’s criminal record.
Committing this crime on the heels of two serious/violent felonies would have landed him in prison for life under California’s three-strikes rule, implemented in 1994.
Even though Proposition 36 changed that rule in 2012, a crime that normally could be considered shoplifting in other states could still being labeled as a felony punishable with hefty fines and prison time in California.
Then came 2014’s Proposition 47. The recently voter-approved ballot proposition reduces a handful of nonviolent crimes from felonies to misdemeanors, including simple possession of most drugs for personal use and stealing items worth less than $950.
- PHOTO BY KAORI FUNAHASHI
Called the Safe Neighborhoods and Schools Act, the proposition was overwhelmingly approved by voters, receiving nearly 60 percent of the vote on Nov. 4. Advocates welcome the change, but 47 has its critics. Cops and prosecutors in Santa Barbara County said it poses a danger to public safety and are now scrambling to implement the law. San Luis Obispo County law enforcement aren’t quite sure what will happen here, but they don’t think it will be good.
Because it’s still fresh on the books, the long-term implications aren’t entirely clear.
“Only time will tell what the real impact is,” San Luis Obispo County District Attorney Dan Dow said.
Santa Barbara County Assistant District Attorney Hilary Dozer said he’s receiving dozens of emails from his counterparts throughout the state, all seeking advice on how they should approach the new law.
“There are problems inherent in any sort of sentence proposal,” Dozer said. “We also don’t want to allow the release of individuals who present a danger to the public.”
And even though some officials in the state—such as San Francisco District Attorney George Gascon and former San Diego County Chief of Police William Lansdowne—backed the ballot measure, many law enforcement and attorneys’ organizations were opposed to it.
With the passing of 47, California effectively became the first state to de-felonize drug use, including simple possession of heroin, cocaine, and methamphetamine. Law enforcement officials say that along with that change will come a lot of future headaches, citing a fear that they will be dealing with repeat offenders.
As a practical matter, San Luis Obispo County District Attorney Dan Dow said the change in law has resulted in a reduction in his office’s felony caseload, with an increase in misdemeanor cases. But his largest worry is about how this change will affect recidivism rates.
“It takes away an incentive for anyone to seek rehabilitation,” Dow said.
In an Oct. 21 opinion piece published in the Santa Barbara Independent, Santa Barbara County District Attorney Joyce Dudley and Santa Barbara County Sheriff Bill Brown came out strongly opposed to 47. Chief among their concerns is the problem of habitual offenders—that there will now be no real legal consequences for people who are repeatedly caught with drugs, including rohypnol, commonly referred to as the date rape drug.
- FILE PHOTO BY STEVE E. MILLER
- REVOLVING DOOR: Under the new rules imposed by Proposition 47, SLO County Sheriff Ian Parkinson thinks drug users will have less incentive to seek rehabilitation services, such as those he said became available through the ongoing jail realignment program.
San Luis Obispo County Sheriff Ian Parkinson told New Times that the change in law comes at a bad time. As elsewhere in the state, the SLO County Jail is in flux with the implementation of realignment, a legislative change that funneled more inmates into jails rather than prisons, but also included more opportunities to provide treatment. And Parkinson expressed little faith that people who need treatment will do so without being incarcerated.
“Now my feeling is that we’re going to rely more on them getting treatment on their own, which I don’t think is probably too viable because they’re addicts; they’re users,” he said. “When you’re using meth and heroin, most people that are into those aren’t waking up in the morning and thinking, ‘I’m going to go put myself through treatment and get out of this.’
“I guess it’s more to me that just timing is really bad considering the progress that we were making,” Parkinson concluded.
Dow said he would rather have seen a law that made less sweeping changes, and only pushed some drug offenses into so-called “wobblers,” for example. A program he plans to implement in early 2015 would give first-time drug offenders the opportunity to go to a class, pay a fee, and stay clean for about six months. Successful participants will have the offense cleared from their record. But Dow said he believes Proposition 47 removed the teeth in existing laws, making it harder to get people into rehabilitation programs.
“People that already have a criminal history, they have less to protect, so they’re less likely to benefit from any program because they don’t see the incentive,” Dow said.
One impact of the new law is that it affects whom deputies can arrest: “A peace officer is still able to make an arrest for a felony not committed in his presence but cannot make an arrest for a misdemeanor not committed in his presence,” SB County Sheriff Brown said.
He added that his officers may still be able to make misdemeanor arrests, but the suspect could be released without bail for a promise to appear before a judge. It would be like receiving a citation, he said.
Dow thinks that first-time drug offenders rarely end up in prison, and Proposition 47 will reduce their chances at successful rehabilitation and lead to an increase in criminal activity.
“Any first-time drug offender that’s in state prison likely has a very long history of other crimes besides drug offenses,” he said.
Some drug crimes are excluded from 47, such as trafficking, selling, and getting caught with a large quantity, which law enforcement could consider as intention to sell drugs. But the way drug offenders will now be charged isn’t the only thing Brown feels isn’t right about the new law.
Officials interviewed for this story said they believe the reduced penalties for thefts of guns are a worrisome idea for police. Gun thefts involving property totaling less than $950 are now also considered misdemeanors, which Brown finds “ludicrous.”
Given the other public pushes for changes to gun regulation, Parkinson criticized the changes Proposition 47 will bring.
“I think it’s absolutely contrary to the message being sent by the public and I think it could have significant impacts.”
However, possessing a stolen, concealed gun remains a felony.
California didn’t pass Proposition 47 on a whim. The law came about because of a problem the state has with overpopulated prisons. It’s not a new problem or discussion, but it is one the United States Supreme Court essentially ordered California to take care of.
Looking back, one could make the argument that maybe the prison population issue started with the War on Drugs. Since its inception in the 1970s, it has sent untold amounts of drug addicts to prison. Federal drug laws essentially turned the criminal justice system into a machine that sent hundreds of thousands of drug offenders to prisons. States followed suit, and California was no exception.
Decades later, the state’s prisons were overcrowded. In the 2011 Brown v. Plata lawsuit, the United States Supreme Court mandated that California fix its staggering prison overcrowding problem. The state Assembly passed AB 109 later that year and began shifting tens of thousands of inmates from its state prison system to county jails in an effort known as realignment.
The next year, voters approved Proposition 36, which modified California’s three-strikes law, removing life sentences for nonviolent or non-serious third strikes, unless the first two strikes involved violent crimes. The move was seen as a way to reduce the prison population, while still keeping a tight leash on those whose sentences were reduced because of the law.
According to Parkinson, the strain to the jail will not be the issue.
“I would say though it’s a lower percentage as far as affecting the population in pure numbers,” he said. “I think the biggest effect is that idea of providing treatment.”
Unclogging the system
Predicting what will happen years from now as a result of Proposition 47 may be a difficult endeavor, but some of its short-term effects are already clear. Under 47, crimes like shoplifting, grand theft, receiving stolen property, forgery, fraud, and writing bad checks are all reduced to misdemeanors provided the value in each crime does not exceed $950. Possession of most drugs for personal use is classified as a misdemeanor, although state law doesn’t clarify exactly what amount of drugs constitutes personal use.
SB County Assistant District Attorney Dozer indicated that if a person is caught with an excessive amount or some sales-related items like a scale and baggies, then they could be charged with distribution crimes. Dozer said that some of these could still be considered “wobbler” crimes, meaning that prosecutors have the option to charge them as either a misdemeanor or a felony. This same sort of line wobbling could apply to other things on the Proposition 47 reduced charges list. For instance, writing bad checks (whether it’s $950 worth or not) related to identity theft, would fall in the felony category.
The law is also retroactive, which means some prison inmates are now eligible for resentencing and early release. Officially, it’s not clear how many inmates will be released under the new law, but estimates point to about 10,000 inmates throughout the state, according to Lenore Anderson, a former prosecutor who is now the Executive Director of Californians for Safety and Justice. The state hasn’t done an exhaustive check to see who is and isn’t eligible. Applications are being pushed to the county level.
Dow said his office had received 34 petitions from defendants seeking a reduction or resentencing. Most of those petitions came out of the county jail, he said, and only a small percentage of prison inmates are expected to be eligible.
- FILE PHOTO BY HENRY BRUINGTON
- FALSE PROMISE: SLO County District Attorney Dan Dow believes voters were misled about what Proposition 47 would actually do. And with that law in place, Dow said he believes the wrong types of offenders will be getting off easy.
Dozer, who is acting as the Proposition 47 application clearinghouse in Santa Barbara County, estimates that 50 people from the county could be released. The applications are being sent to a judge for a thorough review. It’s a small number compared to counties with bigger general populations that have sent hundreds of small-time crime perpetrators to prisons over the years. But the local efforts will contribute to the total savings the proposition is expected to bring to the state’s prison system, anticipated to be around $200 million per year.
But for Raimundo Montes de Oca, the head public defender for Santa Barbara County, the law is not completely black and white. It gets a little complicated with inmates who are convicted of a violent crime in one county, but convicted of a nonviolent, non-serious one in another county. He said prisoners with histories of violent or sexual crimes most likely will not be eligible for resentencing. But, he added, prisoners with nonviolent third strikes who were previously ineligible for resentencing under Proposition 36 could theoretically re-file under the new law.
Retired Superior Court Judge George Eskin has more than 50 years of experience as a judge, prosecutor, and defense attorney. Eskin said that any danger to public safety due to Proposition 47 is largely a myth.
“I think the fears that the sheriff [Brown] has expressed are exaggerated,” Eskin said. “It’s not a bunch of dangerous people who are going to be released from custody and come flooding back to Santa Barbara County.”
Eskin also wrote an opinion piece for the Independent. It expressed support for the proposition from the perspective of cost savings, and he disagreed that 47 is soft on crime.
“The end result of this costly process, a misdemeanor conviction, does not justify the financial expense and the valuable resources invested by police, prosecutors, and the courts,” Eskin wrote in the piece published Oct. 19.
Eskin thinks that 47 will shore up an already strained court system. He said there are at least 400 pending felony cases in the county with defendants who’ve been waiting 90 days or more for a trial—half of them six months or more.
The number of preliminary hearings will be reduced, he said.
Regardless, he added, most of the defendants cut deals with prosecutors. Out of 100 court cases, only five may go to trial, Eskin said. But then, there are also those who are in jail facing felony charges, being held pre-conviction and transported back and forth between the courthouse and jail for court hearings. In Eskin’s opinion, Proposition 47 should reduce the number of people in jail waiting for their cases to be resolved.
Now, he said, prosecutors will be deprived of the opportunity to over-inflate charges hoping to get some sort of plea, which is what he perceives Proposition 47 to be about. A common practice for prosecutors, as Eskin explains it, is to file as many charges as legally possible in order to make at least one stick. With fewer felony charges to be able to tack on, there’s less bargaining power on the prosecutor’s side.
Defendants with a prior felony typically received harsher treatment.
Eskin said the stigma of having arrests or convictions for some non-serious, non-violent crimes will no longer follow a person for life and impair them from attaining a higher education or decent employment. In previous years, Eskin witnessed the effects of the laws, which he said sometimes destroyed families and sent breadwinners to prison.
But Proposition 47 also came with a change in funding for treatment. As much as $250 million was included to go toward treatment. Sixty-five percent of the Safe Neighborhoods and Schools Fund set aside by 47 goes to the Board of State and Community Correction for mental health and drug treatment programs. Brown argued that the local share would likely not be enough to provide adequate treatment services.
“If it turns out that we can truly get more financial resources because of savings to put into actual rehabilitation facilities, in and of itself that would be good, that wouldn’t be a bad thing,” Dow said. “What I’m concerned might outweigh that is more folks that are repeat offenders out on the streets … and we don’t have any way to protect the community from them committing new offenses.”
But Eskin argues that anything other than throwing addicts and the mentally ill in the slammer is an improvement. He calls it a step in the right direction.
“I think there needs to be a paradigm shift in the public attitude towards low-level crimes,” he said.
“I don’t think the California voters voted for it because they thought it was soft on drugs; I think they voted for it because it was called the safe neighborhoods and safe schools act,” Dow said. “I respect the voters very much in terms of their decision, but what they were given on the ballot was just a tiny little of sampling of what the law actually is.”
Proposition 47’s implementation will obviously yield both short-term and long-term effects. It’s going to take a cooperative effort to iron out the details. Both Assistant District Attorney Dozer and public defender Montes de Oca agree on this. Officials currently have no choice but to focus on the short-term effects of the law. Montes de Oca admitted that there will be problems but said there’s already an “excellent collaborative relationship” between his office and the district attorney’s office.
Asked if there’s anything good in 47, Sheriff Parkinson had trouble finding many positives in the actual law, from his perspective, but said that it does indicate a change in how the public wants to deal with drug offenders.
“They’re focused on wanting to treat people, as opposed to incarcerate them,” Parkinson said. “So in a sense it’s good that they feel that way, but I would have to counter myself even on that: Is this the best way to get at what they might want to accomplish?”
David Minsky is a staff writer for New Times’ sister paper, the Sun. Contact him at firstname.lastname@example.org. New Times Senior Staff Writer Colin Rigley contributed to this article.