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By Tom Cushing

Prop 47: not perfect, just preferable.

Uploaded: Oct 27, 2014

Prop 47 on criminal sentencing is a policy wonkboy's delight. It's complicated, dealing with legal arcana and impacts on several levels. It's obscure, having been shouldered-out of the spotlight by the millions (and millions) of dollars invested in the shameful deceptions of the 45 and 46 campaigns. It is also a victim of sound-bite politics that over-simplify all significant governance issues. And its bed-fellowage is strange, indeed ? 47's list of supporters and opponents defies normal righty/lefty line-drawing.

As a Myers-Briggs 'perceiver' (journey > destination), I found it fascinating to poke around in its implications and likely effects (the League of Women Voters materials are particularly good). Like those dreaded term papers of old, however, at some point you just have to stop researching and write something. I've concluded my incomplete ramble by deciding to vote for it. Here's why.

First, this is what Prop 47 does, courtesy of (severely edited):

"The initiative would reduce the classification of most "non-serious and non-violent property and drug crimes" from a felony to a misdemeanor. Specifically, the initiative would:

 Mandate misdemeanors instead of felonies for certain "non-serious, nonviolent crimes," (e.g., property crimes < $950, drug possession for personal use) unless defendant has prior convictions for murder, rape, certain sex offenses or certain gun crimes.

 Permit re-sentencing of about 10,000 inmates whose crimes would have been so reduced, per a 'thorough review' of criminal history and risk assessment before re-sentencing to promote public safety.

 Create a fund to receive savings thus accrued by the state. Estimates range from $150 million to $250 million per year, and

 Distribute those funds as follows: 25% to education, 10% percent to the victim compensation and 65% to the Board of State and Community Correction."

Context. In recent decades, California's priorities have swung between crime and other social issues, like education, environment and taxes. Concern for public safety may have reached a crescendo in the mid-1990s, with the referendum passage of the three-strikes law. Since then, other issues have come to dominate, and the costly implications of incarceration have become evident.

Despite having built 22 prisons (vs. one new state university) in the past 30 years, prison populations reached 2X design capacity by 2004, to the point of being unconstitutional by even today's US Supreme Court standards (with resulting federal oversight of the system). Reassignment of some convicts to county jails, and early release of others have reduced the overage, but the state prisons still hold more than 116,000 inmates (roughly the combined attendance of the three recent World Series games), or more than 140% of capacity. The prisons must be further reduced to 137.5% soon.

Statistically, property crime rates have increased "noticeably"; violent crime rates have increased slightly and overall, both rates are near historic lows. We spend about $63,000/inmate/year, vs. about $9,000/school pupil/year, according to 47 proponents. About 10% of the entire state budget goes to corrections.

Thus, resentencing and felony avoidance will address overcrowding, and also save state costs by $150-250 million/year. Further savings of similar scale will be achieved at the local level, in both reduced jail expense and prosecution costs (misdemeanors are cheaper to pursue).

Use of the savings. Note that the state's savings will not be returned to taxpayers, but deflected into three other pockets: education, victim comp and rehabilitation. I am generally no fan of this type of earmarking ? the money would better be returned to the general fund (or refunded, even), with programs drawing from it according to their overall relative merits. This is the weakest element of the Prop on the merits, but such silly arithmetic is not enough to turn me against the proposal.

Public Safety. Actual numbers of cases affected are not easy to find. One approach might be to compare the inmates eligible for resentencing to the general prison population (a little under 10%), but that seems low. Possession drug cases and thefts (defined broadly) are certainly a 'significant' portion of overall caseloads.

Beyond the fear-mongering imagery about dangerous felons let loose on our streets, we probably can expect a mild uptick in property crimes if 47 passes, but next-to-no increase in violent crimes. To paraphrase supporter Newt Gingrich (yes, that one ? not sure why), we will still imprison criminals we fear, but fewer criminals we're only mad-at. It may be interesting to note that overall crime in other states that have taken similar steps (e.g., TX) have actually gone down, but it's not clear to me that there's a relationship ? Texas is booming, for example, and crime always falls when folks are better-off.

While I do not relish the thought of losing my stuff, it's only (insurable) stuff, after all. I've also got dogs who'd likely take adequate exception to a burglar (I recommend them as crime fighters -- even little guys sound impressive behind an entry door. At minimum, their racket may attract attention. I also know where you can get one, cheap, and would be happy to assist your selection process ... but I digress.), and we will be saving a ton of money. As to drug possession crimes, I'm with those who believe the 'war on drugs' has been a policy and justice disaster. 47 will reduce penalties appropriately, I think, but real solutions lie elsewhere ? especially in the drug-dealing realm.

Further, downgrading certain offenses may tend to sharpen the focus of always-limited law enforcement attention on truly dangerous individuals. That does not seem to me to be a bad thing, but I'm not real secure in that conclusion. Your thoughts?

Finally, in an unusually thoughtful, respectful exchange on KQED's Forum, Steve Wagstaff, San Mateo County DA, opposed 47 primarily on the basis that it reduces his discretion as a prosecutor to decide how to charge various offenses, especially so-called 'wobblers' that can go either way. He believes the public is well-served by leaving that decision to the elected experts. In that regard, I do respect him, but not necessarily everyone in similar positions of authority.

Supporters/Opponents. This is an interesting free-for-all. The Governor appears to be absent (although he vetoed similar legislation last year). It is sponsored by the SF DA and San Diego Police Chief, and supporters include the state Democratic Party, NAACP, ACLU, various victims' organizations, Big Labor and the Catholic Conference of Bishops.

Opponents include the State GOP (although Mr. Kashkari is also absent from the roster), Sen Dianne Feinstein (the closest Senator we have to a Republican, I guess), many other DAs (including Contra Costa's Peterson and Alameda's O'Malley), and Police Chiefs and Sheriffs organizations.

In campaign cash on-hand earlier this month, the Yessers have it $4.6M to $298,000.

Use of the Referendum system. There are always some issues that come before the voting population by popular demand, after being derailed in the Sacramento legislative sausage factory. Prop 2 in 2008 was like that ? Big Ag interests had blocked food-animal reforms in the Capitol for 20 years. Voters, however, overwhelmingly approved those minimum decencies, 2-1. I'm not certain which bizarre power currents flow in what direction$ on this issue, but it's the kind of thing I'm glad we get to vote-on directly in these parts.

On balance, Prop 47 appears to be a step in the right direction. Crime is a problem, but it is hardly our only priority in this state. Over-emphasis on it has syphoned money and attention from other issues, and some crimes have overly severe penalties. This measure goes part way to restoring a better balance on both scores.