Calif. lags behind in reducing incarceration

By Marisa Lagos
The San Francisco Chronicle

Sacramento — As California deeply cut spending for public schools, social services and health programs in recent years, state leaders also found themselves grappling with a court order to reduce the prison population by tens of thousands of inmates.

Some civil rights groups and criminal justice experts are now seizing on this perfect storm of chronic deficits and crowded prisons to push for wide-ranging changes to the state's sentencing laws that would transform California's handling of crime and punishment. The California chapters of the American Civil Liberties Union and other civil rights groups want the state to reduce drug possession and low-level, nonviolent property crimes from felonies to misdemeanors, and they want more community-based alternatives to incarceration.

Yet even modest changes have trouble getting legislative support from Republicans and Democrats alike in California — even as bipartisan groups of policymakers in conservative states such as Texas, Mississippi and Kentucky embrace sentencing reform and alternatives to incarceration.

"There's a political paralysis here — people are afraid," said former state Sen. Gloria Romero, D-Los Angeles, whose 2007 bill to create an independent sentencing commission passed the Senate but failed in the Democratic-dominated Assembly. "I think it's a false fear, but they are afraid of being labeled soft on crime, so they legislate by sound bite. They don't take up the big issues, so years pass and we are in the same predicament."

'Massive' increase
California's prison population has grown 750 percent since the Legislature passed a determinate sentencing law in the 1970s that set strict requirements. Under the law, all felonies except murder and a few others punishable by up to life in prison are subject to three possible sentences — a system that critics say politicized the sentencing process.

In the recent U.S. Supreme Court decision ordering California to reduce its prison population by 33,000 inmates over the next two years, the majority castigated California's decision makers, saying that the "massive" increase in the prison population "is the result of political decisions made over three decades, including the shift to inflexible determinate sentencing and the passage of harsh mandatory minimum and three-strikes laws, as well as the state's counterproductive parole system."

The court went on to note that while "state-appointed experts have repeatedly provided numerous methods by which the state could safely reduce its prison population, their recommendations have been ignored." The court blamed a "convergence of tough-on-crime policies and an unwillingness to expend the necessary funds to support the population growth."

'Get a gun, buy a dog'
Recent legislative fights bear out the courts' contentions. Last month, a bill that would have given district attorneys the power to decide whether to charge marijuana cultivation as either a misdemeanor or felony — and save taxpayers an estimated $3.5 million a year — mustered only 24 votes in the Assembly, with much of the opposition coming from Democrats. And Gov. Jerry Brown's proposal to send low-level, nonviolent offenders to local jails instead of state prisons has prompted howls from the right. Republican Assemblyman Jim Nielsen of Gerber Tehama County warned of "blood on the streets," and Sen. Sharon Runner, R-Lancaster Los Angeles County, said Californians need to "get a gun, buy a dog, and put an alarm system in."

"It's the politics of fear," said Sen. Mark Leno, D-San Francisco, who has had mixed results in pushing prison reforms through the Legislature. "In times of fiscal crisis, when we are limited to a few choices, the question is how long can we afford to lock up ever more people for longer periods of time and still have funds for public education and higher education?"

Leno said California's corrections budget has more than doubled as a percentage of the state's general fund spending since he entered the Legislature in 2003.

Change opposed
Barry Krisberg, a criminal justice expert at UC Berkeley, said the California District Attorneys Association has enormous sway over lawmakers and opposes most sentencing changes.

He noted that the federal government and 23 states have sentencing commissions, which tend to increase penalties for violent crimes and decrease penalties for nonviolent offenses.

"The question is, what's wrong with us? Are we more conservative than Virginia? Are we more irrational than North Carolina?" he said. "It's the politics, and it's the dilemma of this state. ... Unlike almost all the other states, we have been unable to get the two parties to sit down and cut a deal. It's not the prison guards — they are not standing in the way. It's not victims' rights groups. It's really the District Attorneys Association."

An official at the District Attorneys Association did not return a call seeking comment, but association officials have in the past said they would support a sentencing commission so long as it is a purely advisory body.

'Willie Horton' syndrome
Politicians also fear the "Willie Horton" syndrome, Krisberg said — a reference to the Massachusetts felon who did not return from a weekend prison furlough program and brutally raped a woman. Then-Massachusetts Gov. Michael Dukakis' support for the program and response to the incident helped doom his White House bid.

"Democrats are scared of being used in the next campaign," Krisberg said. "The minute we made determinate sentencing the law through the Legislature, we made sentencing a political issue. That's been going on for 30 years, and it's hard to turn around after 30 years."

That's not the case everywhere, said Adam Gelb of the Pew Center on the States. He said states such as Texas, Mississippi and Kentucky have taken notice of the fact "that states can reduce their incarceration rate and also have less crime."

Texas, for example, rejected a proposal in 2007 to spend billions of dollars to add 17,000 more prison beds, and instead increased grants to local probation officials to help keep offenders out of prison, he said. The result? An estimated $2 billion in savings, a 25 percent drop in recidivism and a crime rate that has dropped to 1970s levels, Gelb said.

It's a political winner, he said, because numerous polls show support, across party lines, for lower punishments for nonviolent offenders and for spending money on re-entry and rehabilitation programs in local communities. He and others pointed to the "Right on Crime" initiative, headed by conservative luminaries including Newt Gingrich and Grover Norquist, which argues for "more cost-effective approaches that enhance public safety."

Polls indicate support
It's not just national polls that illustrate public support for change, said Allen Hopper, an attorney with the ACLU of Northern California. A poll his group commissioned in April showed solid support for drug penalty change in the Golden State — 66 percent of Republicans, 72 percent of independents and 79 percent of Democrats in California said possession of a small amount of any type of illegal drug should be a misdemeanor, not a felony. The poll, which surveyed 800 likely voters, had a margin of error of 3.5 percentage points.

Hopper and others point to what they say are small victories in recent years, including the passage of a bill that would let offenders who are completely incapacitated be released on medical parole and a measure that funded local parole departments so they could institute programs proven to reduce recidivism.

While the first inmate up for medical parole was rejected for release, the probation measure kept thousands of people from returning to prison in its first year, according to state officials. Both laws were authored by Leno.

"People are ready to support reforms," Hopper said.

"There's a political paralysis here — people are afraid ... of being labeled soft on crime, so they legislate by sound bite."

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