Reaping the Bitter Rewards of Proposition 47

A recent New York Times story suggested it’s time to reform the criminal justice system because according to the Times, in recent decades, the prison population has risen, while crime has fallen.

The story fails to make a connection between an obvious fact suggested by the statement: there’s a direct correlation between a falling crime rate and aggressive incarceration of violent and repeat felons.  Moreover, as a small segment of the population commits a very large percentage of crime, incapacitating them from doing so prevents them from committing more crime.

What is disturbing is the conversation about drug offenses is being used as cover to roll back effective crime fighting laws that incarcerate the repeat offender.  That was the case with Proposition 47.

Proposition 47 was falsely sold to voters as a sensible and compassionate reform of drug laws and sentences. In reality, under the guise of reform of “victimless” drug offenses, crimes that affect real people were made misdemeanors, which in reality means no punishment.  These offenses include purse snatching, check forgery, repeat shoplifting, theft by those with multiple theft convictions, entering businesses with the intent to steal, with intent to steal, and rather unbelievably gun theft and possession of date-rape drugs.  Along with other law enforcement organizations,  we opposed Prop. 47 not because we were opposed to reform, but because we had real concerns with the proposition.

As frontline prosecutors, we know that the reality is that the primary focus of criminals being prosecuted is twofold: “when am I getting out,” and “how much time do I have to do.”  Any seasoned prosecutor or defense attorney will confirm this.  In fact, countless times, criminals will accept plea deals subjecting them to much longer punishment in the future, just so they can be released today.

More than 115,000 criminals have asked the courts to reduce their sentences from felonies to misdemeanors, according to a recent report by San Francisco NPR station KQED. More than 3,200 – many with violent crime histories -have been released so far from state prisons.

Earlier anecdotal evidence of the law’s effect is troubling. According to a recent  Los Angeles Times report, local narcotics arrests have plunged because it’s not worth officers’ time to process misdemeanor cases.  A Times analysis of crime data shows property crimes, including burglary, theft and motor vehicle theft, surged in much of the county since Proposition 47 passed. Of the nearly 4,500 people that L.A. County sheriff’s deputies arrested on Proposition 47 crimes since early November, more than 460 have been arrested again.

Among other things, the measure provided no incentive for rehabilitation.  As we predicted, the initiative impacted Drug Courts since there is no incentive to do an 18 month to 2 year intensive treatment program when the maximum consequences for a drug conviction is a six month misdemeanor term in county jail. And we know with overcrowding a six month county jail sentence means only a few days or in some cases hours in LA County Jail.  In addition to removing effective sanctions for criminal offenses, the removal of incarceration as a viable consequence has decimated programs the previously successful Drug Courts program.  A key part of ensuring that convicted drug users entered and completed the program was the ability to hold incarceration as a consequence of not following conditions from previous cases.  That effective “stick” has been removed.

The truth is that people who commit crimes change their ways when they want to, on their own timetable. The sad reality is that most criminals haven’t been waiting for the day that numerous community programs could be enacted so they could change their criminal ways.   As the old saying goes, they reform their ways when they are “sick and tired of being sick and tired.”  All the well intentioned “interventions” in the world will not succeed unless the person who is the subject of the “intervention” wants to change.  In the interim, until they reach that state, keeping them locked up and unable to harm society benefits society.

Proposition 47’s legacy will continue to reverberate well into the future. For example, thousands fewer DNA samples are being taken from suspects every month because state law allows police to collect DNA only from felony suspects. Fewer DNA collections will make it much harder – if not impossible – to solve old violent crimes such as murder and rape.

There is a small glimmer of hope. Some state legislators have taken action to address Proposition 47’s most egregious flaws.   Assembly Bill 390 would require anyone convicted of the crimes reduced from felonies to misdemeanors by Proposition 47 to still have to submit their DNA to the state database.  Assembled Bill 150, introduced by Assemblywoman Melissa Melendez, would reinstate the felony grand theft charge for gun theft. “Those who oppose making gun theft a felony must want to keep the punishment consistent with the leniency they are giving sexual predators,” Melendez told us. “I’ll give them this – at least they’re consistent.”

But even if AB 150 passes and Gov. Brown signs it, state voters would still have to amend Proposition 47 to include the bill’s provisions.

The ADDA, along with most California prosecutors and law enforcement agencies, vigorously opposed Proposition 47 because it was an ill-conceived and harmful measure that we knew would have unintended consequences.  We haven’t given up the fight to fix the flaws in the initiative. We will continue to do everything possible to fix the most serious problems with the measure by working with elected officials on reforms, by warning people about its disastrous effects, and by informing them when crimes occur because of it.

One has to wonder how many crime victims it will take for state voters to regain their senses and fix the mess they created when they enacted sweeping reforms to our criminal justice system.

The Association of Deputy District Attorneys (ADDA) is the collective bargaining agent and represents nearly 1,000 Deputy District Attorneys who work for the County of Los Angeles.