Commentary: The Mistake of Not Going All In on Prop. 47

When Yolo County DA Jeff Reisig went to the Board of Supervisors complaining that, over the last several years, “what we’ve seen is increasing property and violent crime in Yolo County,” it turns out it was part of a growing trend in the state. While he blamed this on AB 109 and expressed concerns about Prop. 47, he acknowledged the trend in Yolo County “isn’t in line with statewide averages.”

He told the Supervisors that they had since the beginning of this year seen “a revolving door” of offenders, but then acknowledged that they had yet to collect real data demonstrating this.

He argued that, currently, judges are not giving jail time for drug offenses. Instead, offenders are referred out to the probation department for a review to determine what kind of services they need, “but we don’t have any services being offered to them right now.”

However, Presiding Judge Kathleen White and Judge David Rosenberg responded that, in fact, the judges had adopted a new practice which puts misdemeanor offenders on supervised probation which included services and the threat of jail time.

“Our hope is that, yes, all the studies show that drug offenders, that when you have incarceration or at least the threat of incarceration as part of the formula to get them treatment, it works better,” they said.

Supervisor Jim Provenza said, “When people voted for the proposition they were probably assuming that people would get time in jail when it was reduced from a felony to a misdemeanor.”

Mr. Reisig added, “It was also assumed that there would be money for treatment, but that’s not true. There is no money from Prop. 47 until potentially 2016, and even that is yet to be realized.”

But now there are efforts underway to undermine Prop. 47 at the state level before the funding portion has even kicked in and that would be a real shame, argues Zachary Norris, executive director of the Ella Baker Center for Human Rights in Oakland, in an op-ed in the Sacramento Bee this week.

He notes that “only a few months later and before Proposition 47 can be fully implemented, some misguided lawmakers are trying to undermine the will of the voters by introducing bills designed to dismantle this important initiative that made the system fairer.”

Some of the bills would send parts of Prop. 47 back to the ballot. He argues instead, “We need to give the measure time to work, to be evaluated and to deliver on its promise of community investment.”

There is no guarantee the legislative efforts will be passed or will work. In the years following the passage of three strikes in 1994, legislators, seeing a rash of very minor offenses end up with life sentences, attempted to pass legislation to reform three strikes, but it took until 2012, with the impact of the measure very clear, before the voters were willing to alter three strikes to avoid non-violent, non-serious, non-sexual offenses becoming third strikes.

As Mr. Norris rightly points out, “Californians passed the measure because we are tired of ‘tough-on-crime’ policies that dole out disproportionately harsh punishments and fail to make our communities any safer. Past legislation, such as the ‘three-strikes’ law, served only to trap more low-income communities and people of color in a web of criminalization and incarceration.”

He argues, “Requiring that certain low-level offenses be charged as misdemeanors begins to tear apart that web by removing huge barriers that prevent former inmates from obtaining available jobs and housing. Under Proposition 47, individuals with felony convictions who were previously barred from public housing, or who were discriminated against in their job search, now have a genuine opportunity to rebuild their lives and rejoin their communities. That will make us all safer.”

From our standpoint, Mr. Reisig has a potential solution right in front of his nose, and refuses to use it. Earlier in his presentation he bragged about the success of the Neighborhood Courts and how jurisdictions across the state and even the nation were looking to adopt it.

While the Neighborhood Courts have a lot of potential, advocates of restorative justice approaches argue that we should go further – much further. In November 2013, the Vanguard featured Fresno County Judge David Gottlieb as a speaker and he had implemented a restorative justice program in Fresno involving youth offenders.

Since 1982, Fresno County has had something called a VORP – Victim Offender Reconciliation Program which has the ability to bring “victims and offenders together in safe mediation or family group conference settings to permit the offender to take responsibility for his or her actions, to make things as right as possible with the victim, and to be clear about future intentions.”

Right now the Yolo County program focuses mainly on victimless crimes, but Fresno has for 30 years been far ahead bringing victims and offenders together.

Many have falsely argued that programs like restorative justice approaches are “soft” responses to crime. However, they are missing a crucial element. In a punishment-based system, the individual is incarcerated. They often maintain their innocence and rarely have to take responsibility for their crimes.

As Sujatha Baliga explained in a 2013 appearance in Davis, today when there’s a crime, she said, we think in terms of “What law was broken?  Who broke it?  And how do we punish that person?”

“Restorative justice asks a very different set of questions,” she continued.  “It asks what harm was done, what needs have arisen, and whose obligation is it to meet those needs?”

The process itself forces the individual who did the wrong to acknowledge that they did wrong and acknowledge and understand the impact on the victim. Most restorative justice advocates – most of whom have examples of real life successes – maintain that this is far more difficult than simply doing  time.

The individual is confronted with what they have done and the harms it has caused.

The district attorney at the very least has the opportunity to introduce a restorative program for what would now be petty theft charges when an individual steals less than $900 worth of property. Why not implement the Neighborhood Court as part of the process to deal with those individuals?

It is not that the expansion of the Neighborhood Court alone will resolve the problem. There are two other aspects that we would like to see fully implemented. One is more extensive substance abuse help.

As we noted last week, Yolo County has some options that the DA has reportedly refused to take. One possibility is to divert Prop. 47 defendants into treatment at the Yolo County Day Reporting Center. The DRC was opened in February 2013 and it provides vocational training, life skills which are designed to teach offenders the skills they need to find a job.

One of the programs they have includes drug and alcohol treatments. That is an existing program that has received high marks.

The other thing that the DRC can do is job training, providing vocational and life skills to help them get a job.

One of the big hindrances of the law prior to Prop. 47 is that drug offenders were felons and had to check the felony box on applications. As the work of Michelle Alexander has helped us to understand, felony status has created an entire class of individuals with second class status – they had trouble getting real jobs, trouble finding places to live, trouble getting public assistance, and they are disenfranchised.

Finally, the old system did not work. California had a strict punishment system but a huge number of offenders in custody and a 70 percent recidivism rate for when they were released. Talk about a revolving door.

Crime rates were down – in fact declining steadily from their peak in the late 1970s, 15 years before three strikes was implemented, but for the people in the system, it was a trap that most could not escape.

Instead of looking for ways to undermine Prop. 47, we need to look for innovative ways to make it work and Yolo County has both the resources and tools to do this.

—David M. Greenwald reporting

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