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 burglary.
It was what’s known as a “wobbler” crime; it could be a felony or a misdemeanor, depending on the perpetrator’s criminal record. Committing the crime on the heels of two serious/violent felonies would have landed him in prison for life under California’s three-strike rule, implemented in 1994.
Even though Proposition 36 changed that rule in 2012, a crime like shoplifting that normally could be considered a misdemeanor 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 recent voter-approved ballot proposition reduces a handful of nonviolent crimes from felonies to misdemeanors, including the simple possession of most drugs for personal use and theft of items valued at less than $950.
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.
Because it’s still fresh on the books, its long-term implications aren’t entirely clear. 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 throughout the state were opposed to it. Naysayers include officials from Santa Barbara County.
Changing penalties
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.
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.
“Our concern is that the biggest penalty they can face is a short jail sentence, if any jail, and maybe a fine and a short stint of probation and that’s it,” Brown told the Sun.
Because of the looser penalties for simple drug offenses, Brown worries that the change in law will result in less substance abuse treatment for drug addicts. He fears that treatment will be lost for the more than 1,100 drug offenders in the county who are diverted from criminal court to drug court with a plotted course of recovery.
“They won’t have the incentive to kick their habit anymore,” he said.
One impact of the new law for the Sheriff’s Office, at least, is that it affects who 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,” 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.
Brown predicts there will be a rise in certain crimes now that 47 is approved: “Chances are that we are going to see an increase in property crimes in particular,” he said, explaining that many of these types of crimes are inextricably connected to the endless pursuit of getting high.
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.
He also thinks reduced penalties for thefts of guns is also a worrisome idea for police. Gun thefts involving property totaling less than $950 are now also considered misdemeanors, which Brown finds “ludicrous.” Possessing a stolen, concealed handgun would have been a felony under the old law but is now considered two misdemeanors.
Population problems
California didn’t pass Prop 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.
With an already strained jail system due to Realignment, Brown fears the lack of any real consequences for repeat offenders will make the inmate population situation worse. The average daily inmate count in Santa Barbara County jails totals nearly 1,000 with a stated inmate capacity of 48, according to statistics compiled by insideprison.com.
“This will put an additional strain on an already strained system,” Brown said, “there is no question about that.”
Unclogging the system
Predicting what will happen years from now as a result of 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.
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 Prop 47 reduced charges list. For instance, writing bad checks (whether its $950 worth or not) related to identity theft, would fall into 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.
Dozer, who is acting as the Proposition 47 application clearinghouse countywide, estimates that 50 people from this 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 prison over the years. But Santa Barbara County’s effort will contribute to the total savings the proposition is expected to bring to the state’s prison system, around $200 million a 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 perpetuated by both Brown and Dudley.
“I think the fears that the sheriff has expressed are exaggerated,” Eskin told the Sun. “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 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 have waited 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.
He also said that prosecutors will now 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 less 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. “Fom the perspective of Brown and Dozer, that a person who has a record of violent crime or serious crimes should be treated more harshly,” Eskin said.
Eskin said the stigma of having arrests or convictions for some non-serious, nonviolent 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.
If there’s one thing both Sheriff Brown and Eskin could agree on, it’s that the money coming from 47—as much as $250 million—will not be enough to impact treatment efforts for repeat drug offenders.
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 argues that since the amount allocated toward counties is per-capita based, that the money Santa Barbara County is getting for drug treatment, an estimated $1.3 million at the most, would likely not be enough to provide adequate treatment services.
“The amount sounded like a lot of money,” Brown said. “It’s peanuts in the scheme of things.”
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 explained.
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.
“We are focusing on the short term because that’s what we need to do first,” Montes de Oca said. “People need to get their sentences reduced. We really can’t anticipate, at this moment, the long-term effects.”
Editors note: This story has been updated to clarify some of the information contained in it.
Contact Staff Writer David Minsky at dminsky@santamariasun.com.
This article appears in Nov 26 – Dec 3, 2014.