Prop. 47 Releases Dangerous Criminals! (Except That It Doesn't)

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By Mark Wilson, Esq. on October 01, 2014 1:25 PM

This is the second in a series about this year's California ballot propositions. Hopefully we can help sort out the wheat from the chaff when it comes to claims about what these propositions do and don't do. In case you missed it, here's our discussion of Proposition 46.

After years of brutal, "tough on crime" punishment, the United States -- and California -- has decided that maybe mandatory minimums, harsh sentences for nonviolent drug offenses, and Draconian recidivism statutes aren't the way to go after all. In 2012, the state amended its "Three Strikes" law to make the mandatory 25-to-life sentence applicable only if the third strike is a violent felony. Just this week, Gov. Brown signed a law that eliminated the crack/cocaine sentencing disparity in state law.

Now comes Proposition 47, which seeks to "ensure that prison spending is focused on violent and serious offenses." Cue the disingenuous claims that child molesters will get released directly into elementary school playgrounds in 3, 2, 1 ...

What Prop. 47 Does

Prop. 47 establishes a new "Safe Neighborhoods and Schools Fund" to be spent on supporting students at risk of dropping out of school, providing services to crime victims, and supporting mental health and substance abuse programs.

"Wobblers" are misdemeanors that can -- at the prosecutor's discretion -- be charged and sentenced as felonies if the offender has a criminal history. Prop. 47 mandates that really petty misdemeanors -- like writing bad checks or possession of certain drugs in certain amounts -- must be charged and sentenced as misdemeanors unless the offender has a history of sex offenses or violent crimes.

The proposition would also allow people currently serving a sentence for what is now a misdemeanor to petition to be resentenced in accordance with the proposition. The state's savings on incarceration and prosecution would be deposited into that Safe Neighborhoods fund.

Why Prop. 47?

Prop. 47 is partially a response to the U.S. Supreme Court's 2011 decision in Brown v. Plata, where the Court found California's prisons were unconstitutionally overcrowded. California took a good, long look at itself and began "realignment," which allowed low-level repeat offenders to be sentenced to county jail instead of state prison. Prop. 36 followed in 2012, and now we're here.

Law enforcement officials like San Diego Police Chief Shelley Zimmerman have predicted a tidal wave of crime, as Prop. 47 "will require the release of thousands of dangerous inmates." Obviously, the law is designed to automatically release only the most dangerous psychopathic killers, right?

Except there's nothing "dangerous" about someone convicted of petty theft. And the release process isn't automatic; a court retains discretion to determine whether the offender should be kept in prison instead of being released. Similar histrionics attended Prop. 36, the relaxation of "Three Strikes" that passed in 2012, and guess what? Turns out the portents of doom were all wrong.

For reformers, Prop. 47 is necessary because even after Prop. 36 and realignment, prosecutors still retain the power to charge repeat offenses as felonies -- something that they have an incentive to do in jurisdictions where a "tough on crime" DA's office gets the district attorney re-elected. As Prop. 47's supporters would argue, that's just not fair to low-level offenders.

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