Backlash Against Proposition 47: Why the Criticism of California’s Criminal Justice Reform is Misguided

by Michael Waxman

In 2014, criminal justice reform advocates proclaimed the ballot initiative Proposition 47 a historic step toward transforming California’s beleaguered criminal justice system.[1] But in the years since, media outlets and law enforcement groups are lashing back at the law for increasing crime rates. However, this criticism is largely unfounded because there is little evidence that Prop. 47 has had a causal impact on crime. Moreover, critics have overlooked the law’s potential benefits from investing millions of dollars in treatment and services for low-income communities. Ultimately, Prop. 47’s success or failure in rehabilitating California’s justice system and revitalizing low-income communities will likely have major political and policy implications for criminal justice and poverty reform efforts at the local, state, and national level.

What is Proposition 47?

Proposition 47, informally Prop. 47, was designed to reduce incarceration and then use the cost savings from these reductions to support distressed communities across California. The law emerged as a response to California’s dangerously overcrowded prisons. In 2011, the U.S. Supreme Court in Brown v. Plata ordered California to reduce drastically and rapidly its inmate population.[2] The case arose from consolidated prisoner class actions in which a federal court had ordered California to reduce its prison population by 137.5 percent of design capacity because overcrowding had caused woefully deficient medical care. Affirming the district court’s order, the Supreme Court noted that California’s prisons “operated at around 200 percent of design capacity for at least 11 years,” and that “[a]s many as 200 prisoners may live in a gymnasium, monitored by as few as two or three correctional officers.”[3]

Despite this ruling, California barely made progress in reducing its prison population over the next three years, causing a federal court to extend California’s deadline to reduce its population.[4] Subsequently, criminal justice reform advocates banded together to pass a ballot initiative, Proposition 47, to reduce prison overcrowding and decrease spending on incarceration.[5] With prominent voices—including Jay Z and Newt Gingrich—supporting Prop. 47, the people of California passed the law in November 2014 with 58 percent of the vote.[6]

Prop. 47 changed six nonviolent offenses—drug possession and five theft-related crimes for amounts under $950—from potential felonies into misdemeanors. The law applied both prospectively and retroactively, such that people with felony convictions could get them reduced to misdemeanors and currently incarcerated people could get resentenced and/or released.[7] Notably, however, the law did not prohibit law enforcement from booking individuals charged with any of the crimes affected by Prop. 47.[8] For instance, police could still detain a pretrial defendant charged with any of Prop. 47’s six affected crimes because the defendant poses “a danger to himself or others,” is intoxicated, has outstanding warrants, or reasonably seems to pose a risk of failing to appear if released.[9]

Furthermore, Prop. 47 required the Governor of California to deposit state prison cost savings from the reforms into a fund designated for grants for mental health and drug treatment, education, and victims’ services.[10] However, Prop. 47 did not allow the first deposit to be made until August 2016, based on the savings from fiscal year 2015-16.[11]

Impacts and Backlash

Prop. 47 succeeded in reducing the state prison population. In January 2015, California’s prison population dropped below the court-imposed cap from Plata for the first time and has stayed below that cap since.[12] As of March 2017, California had resentenced and released 4,666 inmates, and there were 50 percent fewer people serving time for Prop. 47 offenses in county jails.[13] The California Department of Corrections and Rehabilitation estimated that there will be 3,300 fewer incarcerated individuals each year due to Prop. 47.[14]

Despite these reductions in prison and jail populations, national and local reporters have criticized Prop. 47 for contributing to rising crime rates in large cities.[15] The Washington Post reported that Prop. 47 produced “frequent fliers,” or repeat offenders who take advantage of Prop. 47’s sentencing reductions.[16] The San Francisco Chronicle claimed Prop. 47 was a “reckless experiment” that led to the “rampant looting of cars.”[17] The California Police Chiefs Association similarly criticized Prop. 47,[18] and the organization recently sponsored a bill that would undermine the law by compounding offenses, such that stealing $950 worth of property within a year would be a felony, as opposed to a misdemeanor.[19]

The Backlash is Unfounded

Despite the public narrative that Prop. 47 is increasing crime rates, the evidence indicates that this is false. California’s statewide violent and property crime rates are lower now than they were in 2010, even before Plata.[20] While there has been an increase in rates of certain crimes such as aggravated assault, robbery, and auto theft, Prop. 47 did not reclassify or attempt to influence any of these crimes.[21] Furthermore, crime rates in other cities including San Jose, Oakland, Richmond, and Fairfield have decreased or remained stable.[22] These contradictory outcomes suggest that Prop. 47 is not the cause of Los Angeles’ uptick in aggravated assault, robbery, and auto theft.

Given that larger socioeconomic factors as well as the discretionary practices of local law enforcement and criminal courts can affect crime rates,[23] criminologists have cautioned against attributing any increase in crime to Prop. 47.[24] In September 2015, the Pew Charitable Trusts studied twenty-three states that adopted sentencing reforms similar to Prop. 47 and found no impact on crime rates when comparing the three years before and three years after the implementation of the sentencing reforms.[25] In March 2016, the Center on Juvenile and Criminal Justice (CJCJ) concluded that Prop. 47 had no causal effect on criminal activity by comparing crime rates with prison releases and jail population reductions in California’s largest cities. [26] In its study, the CJCJ found that cities in counties with the greatest reductions in total and felony jail populations under Prop. 47 had smaller increases in crime than cities in counties with the smallest reductions in jail populations.[27]

Evidence also suggests that Prop. 47 may ultimately improve public safety.[28] The reduced demand for jail space due to Prop. 47 has given counties greater flexibility to detain “individuals who would have otherwise been released early due to crowding, many of whom were in custody for relatively serious offenses” and who potentially posed a greater criminal threat.[29] While Prop. 47’s potential salutary effects on crime requires further study, the evidence reveals that Prop. 47 has not been responsible for any increases in crime thus far.

Proposition 47’s Savings Will Be Invested in Treatment and Services This Year

While critics have pointed to recent decreases in drug court program enrollment in some cities,[30] this data does not account for the crucial fact that Prop. 47’s savings have not yet been disbursed and will be distributed for the first time this year.[31] The Governor’s latest budget estimates the savings at $42.9 million, and state officials expect to distribute $103 million in grants over the next three years.[32] From this funding, 65 percent of these grants will go to diversion, mental health and drug treatment, housing assistance, and employment-related programs; 25 percent will go to truancy and dropout prevention services for at-risk students; and 10 percent will go to trauma recovery services for underserved crime victims.[33]

Meanwhile, California, and the rest of the country, will wait anxiously to see if these community investments ultimately vindicate Prop. 47’s controversial reforms.

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[1] See Lauren McCauley, California Voters Pass ‘Historic’ Mass Incarceration Reform, Common Dreams (Nov. 5, 2014), http://www.commondreams.org/news/2014/11/05/california-voters-pass-historic-mass-incarceration-reform; Matt Ford, Californians Vote to Weaken Mass Incarceration, The Atlantic (Nov. 5, 2014), https://www.theatlantic.com/politics/archive/2014/11/california-Proposition-47-mass-incarceration/382372/.

[2] Ford, supra note 1 (citing Plata v. Brown, 563 U.S. 493 (2011)).

[3] Id.

[4] Paige St. John, Gov. Jerry Brown’s Prison Reforms Haven’t Lived up to his Billing, L.A. Times (June 21, 2014, 7:30 PM), http://www.latimes.com/local/politics/la-me-ff-pol-brown-prisons-20140622-story.html#page=1.

[5] Nell Bernstein, Prop. 47 Is Changing Criminal Justice. Will It Take Root in U.S.?, Equal Voice News (Sept. 29, 2015, 11:28 PM), http://www.equalvoiceforfamilies.org/calif-prop-47-is-changing-criminal-justice-will-it-take-root-in-u-s/.

[6] Ford, supra note 1.

[7] Changing Your Record Under Prop. 47, Californians for Safety & Justice, http://www.safeandjust.org/recordchange (last visited Apr. 7, 2017).

[8] Proposition 47: Frequently Asked Questions, Californians for Safety & Justice, http://www.safeandjust.org/prop47faq (last visited July 15, 2017).

[9] Id.

[10] Second Chances and Systems Change: How Proposition 47 is Changing California, Californians for Safety & Justice 51 (Mar. 2017), http://www.safeandjust.org/system/storage/211/99/1/779/P47_FINAL-online1.pdf [hereinafter Second Chances].

[11] Id.

[12] Paige St. John, California Prisons Dip Below Court-Ordered Population Cap, L.A. Times (Jan. 29, 2015, 4:16 PM), http://www.latimes.com/local/political/la-me-ff-california-prisons-dip-below-federal-population-cap-20150129-story.html. See also Defendants’ March 2017 Status Report in Response to February 10, 2014 Order at 2, Coleman v. Brown, No. 2:90-cv-00520-KJM-DB (E.D. Cal. filed Mar. 15, 2017), http://www.cdcr.ca.gov/News/docs/3JP-Mar-2017.pdf.

[13] Second Chances, supra note 10, at 13.

[14] Id. at 12.

[15] See Cindy Chang, Marisa Gerber, & Ben Poston, Unintended Consequences of Prop. 47 Pose Challenge for Criminal Justice System, L.A. Times (Nov. 6, 2015, 3:00 AM), http://www.latimes.com/local/crime/la-me-prop47-anniversary-20151106-story.html; Eli Saslow, A ‘Virtual Get-Out-of-Jail-Free Card’: A New California Law to Reduce Prison Overcrowding Keeps One Addict Out of Jail, But Not out of Trouble, Wash. Post (Oct. 10, 2015), http://www.washingtonpost.com/sf/national/2015/10/10/prop47/?utm_term=.89c85b405718; Marc Debbaut, An Explosion of California Property Crimes—Due to Prop. 47, S.F. Chron. (Mar. 18, 2016, 11:50 AM), http://www.sfchronicle.com/opinion/openforum/article/An-explosion-of-California-property-crimes-6922062.php.

[16] See Saslow, supra note 15.

[17] See Debbaut, supra note 15.

[18] See Chang, supra note 15.

[19] Jazmine Ulloa, Prop. 47 Got Thousands Out of Prison. Now, $103 Million in Savings Will Go Toward Keeping Them Out, L.A. Times (Mar. 29, 2017, 12:05 AM), http://www.latimes.com/politics/la-pol-sac-prop-47-grant-awards-20170329-htmlstory.html.

[20] Second Chances, supra note 10, at 17.

[21] Joe Watson, Outcomes of California’s Proposition 47, Prison L. News (Sept. 2, 2017), https://www.prisonlegalnews.org/news/2016/sep/2/outcomes-californias-proposition-47/; see also Second Chances, supra note 10, at 24.

[22] Second Chances, supra note 10, at 24.

[23] Id.

[24] Chang, supra note 15.

[25] The Effects of Changing State Theft Penalties, Pew Charitable Trusts, http://www.pewtrusts.org/en/research-and-analysis/issue-briefs/2016/02/the-effects-of-changing-state-theft-penalties (last updated Feb. 24, 2017).

[26] Second Chances, supra note 10, at 21.

[27] Mike Males, Ph.D., Ctr. on Juvenile & Crim. Justice, Is Proposition 47 To Blame for California’s 2015 Increase in Urban Crime? 2 (Mar. 2016), http://www.cjcj.org/uploads/cjcj/documents/is_prop_47__to_blame_for_ca_2015_urban_crime_increase.pdf.

[28] Mia Bird et al., How Has Proposition 47 Affected California’s Jail Population? Pub. Pol’y Inst. Cal. 15 (Mar. 2016), http://www.ppic.org/content/pubs/report/R_316MB3R.pdf.

[29] Id.

[30] See Chang, supra note 15.

[31] See Ulloa, supra note 19.

[32] Id. The independent, nonpartisan Legislative Analyst’s Office, however, calculated the savings from fiscal year 2015-16 at $135 million, including in its estimate the cost of contracting out prison beds—which was excluded from the Governor’s estimate. Because Prop 47 did not “lay out a detailed process” for calculating the deposit into the fund, there is “no one ‘correct’ way to meet [its] fiscal requirements.” See Legislative Analyst’s Office, Fiscal Impacts of Proposition 47, Assemb. Budget Subcomm. No. 5 on Pub. Safety 5 (Mar. 9, 2016),  http://www.lao.ca.gov/handouts/crimjust/2016/Proposition-47-030916.pdf.

[33] Second Chances, supra note 10, at 51.