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November 1, 2016

Is California's parole reform initiative, Prop 57, among the most important and consequential sentencing ballot issues?

The question in the title of this post is prompted in large part by this recent Los Angeles Times article headlined "Why Gov. Jerry Brown is staking so much on overhauling prison parole." Here are excerpts (with my emphasis added for later commentary):

Few California voters likely know much, if anything, about the state Board of Parole Hearings — from the qualifications of the 12 commissioners to their success in opening the prison gates for only those who can safely return to the streets.  And yet Gov. Jerry Brown’s sweeping overhaul of prison parole, Proposition 57, is squarely a question of whether those parole officials should be given additional latitude to offer early release to potentially thousands of prisoners over the next few years. “I feel very strongly that this is the correct move,” Brown told The Times in a recent interview. “I’m just saying, let’s have a rational process.”

Prosecutors, though, contend the governor’s proposal goes too far after several years of trimming down California’s prison population to only the most hardened criminals. They believe the parole board, whose members are gubernatorial appointees, already is swinging too far away from being tough on crime. “They are recommending release of people we never would have expected would have occurred so soon,” said Los Angeles County Dist. Atty. Jackie Lacey. “I’m concerned about people who really haven’t served a significant amount of time.”

In some ways, Proposition 57 is a proxy for a larger battle over prison sentences.  There are sharp disagreements between Brown and many district attorneys over the legacy of California’s decades-long push for new and longer mandatory sentences, a system in which flexibility is often limited to which crimes a prosecutor seeks to pursue in court.  The warring sides have painted the Nov. 8 ballot measure in the starkest of terms, a choice for voters between redemption and real danger.  “We’re dealing with deep belief systems,” Brown said.

Proposition 57 would make three significant changes to the state’s criminal justice framework. It would require a judge’s approval before most juvenile defendants could be tried in an adult court — reversing a law approved by California voters in 2000.  Critics believe prosecutors have wrongly moved too many juveniles into the adult legal system, missing chances for rehabilitation.

What’s most in dispute are two other Proposition 57 provisions, either of which could result in adult prisoners serving less time than their maximum sentences. Brown tacked those two provisions onto the juvenile justice measure in January.  One would allow an expansion of good-behavior credits awarded by prison officials; the other gives new power to the state parole board to allow early release of prisoners whose primary sentences were not for “violent” crimes.

In an interview last week, the governor argued that his ballot measure would add a dose of deliberative thought to a process too often driven by elected district attorneys playing to the white-hot politics of sensational crimes. “Do you want the hurly burly of candidates, running for office, being the decision makers in the face of horrible headlines?” Brown asked. “Or would you rather have a quiet parole board, not now but 10 years later, deciding what's right?”

The governor’s plan, which amends the state constitution, would only allow parole after a prisoner’s primary sentence had been served — applying only to the months or years tacked on for additional crimes or enhancements.  And like the current system, a governor could override any parole board decision to release a prisoner.

Critics, though, think the parole board is already too eager to approve releases. Greg Totten, district attorney of Ventura County, said he believes parole board members are judged by how many prisoners they release.  “We don't have confidence that the parole board will consider our concerns about public safety or the crime victims' concerns,” Totten said.  “Those hearings have become much more adversarial than they originally were.”  Totten and other prosecutors warn that an influx of new requests for early release would overload parole board commissioners and send too many cases to their deputy commissioners, state civil servants whose decisions are made outside of public hearings.

Prosecutors and Brown have sparred mightily over the assertion that Proposition 57 would only expand parole opportunities for “nonviolent” felons, a term used prominently in the ballot measure’s official title and summary. In truth, the description only means that new parole opportunities wouldn’t apply to prisoners sentenced for one of 23 defined violent crimes in California’s penal code. That list includes crimes most voters would expect to see there, such as murder, sexual abuse of a child and kidnapping.  But in many ways, the list is porous.  Not all rape crimes, for example, are designated as “violent.” Prosecutors insist prisoners serving time for as many as 125 serious and dangerous crimes would be eligible for parole under Brown’s ballot measure.  Not surprisingly, the campaign opposing Proposition 57 is replete with images of felons who prosecutors allege could be released if the measure becomes law....

Brown, whose effort is supported by probation officers and leads in most every recent statewide public poll, suggests two overarching motivations. One is the specter of potential federal court-ordered prison releases, less likely now that massive prison overcrowding has abated after efforts to reduce penalties for less serious crimes and divert low-level offenders to county jails.  Still, the governor insists that Proposition 57 is a more thoughtful way to reduce the prison population than what could some day be chosen by federal judges.

The other, to hear him tell it, is an effort to undo some of what he did in the 1970s in pushing California toward more fixed, inflexible sentences for a variety of crimes. Brown said he now believes that many convicted felons are best judged not at the time of sentencing, but once they have had a chance to change their lives. “It allows flexibility,” the governor said. “I think this case is irrefutable to anyone with an open mind.”

The sentences I have highlighted above provide some account for why I think the Prop 57 vote is potentially so important, and not just in California. If California voters strongly support this parole reform initiative (and do so, perhaps, will also supporting the preservation of the death penalty in the state), elected official in California and perhaps other states may start to feel ever more comfortable that significant non-capital sentencing reforms have significant public support even during a period in which a number of prominent folks are talking a lot about an uptick in crime.  It also strikes me as quite significant that Gov Brown is still talking about the impact of the Supreme Court's Plata ruling about California prison overcrowding and justifying his reform efforts on these terms.

I have previously highlighted in this post why I think an Oklahoma ballot initiative on sentencing reform is similarly worth watching very closely. (That post from September was titled "Why Oklahoma is having arguably the most important vote in Campaign 2016 for those concerned about criminal justice reforms.") I expect that next week's post-election coverage of criminal justice issues will focus particularly on the results of big death penalty and marijuana reform votes. But I believe folks distinctly concerned about modern mass incarceration should be sure to examine and reflect upon the outcomes of these two non-capital, non-marijuana reform ballot initiatives in California and Oklahoma.

November 1, 2016 at 08:19 AM | Permalink


Prof. Berman,
Given that supporters of the Governor's Jailbreak Initiative are spending over $8 million to win passage (some $5 million of that from Brown's campaign war chest) and the bankroll against it consists of about $277,000.00, I think the primary lesson to be drawn is just how much money (or the lack thereof) influences elections. How many California voters do you expect to read the entire law (not to mention comprehend it), and how many will simply see the misleading title "Public Safety & Rehabilitation" and vote yes? Perhaps the most telling point is that the Governor calls his case, "irrefutable", but has ignored the repeated call of California's elected District Attorneys to debate his pet social experiment.

Posted by: Cal. Prosecutor | Nov 1, 2016 10:59:43 AM

Why is there so little money, Cal. Prosecutor, on the Prop 57 "against" side? Are the usual suspect who'd fund "tough-on-crime" campaigns instead allocating their monies to fighting to preserve the death penalty and to oppose marijuana reform? I am not in Cali to watch TV ads, but am I wrong to assume that a huge "clever" play by Gov Brown was to push this initiative when the "shiny" objects of capital punishment and marijuana reform are chewing up all the money and attention from the usual activists on both side?

I do not think anyone can seriously debate that money "influences elections," but I seriously wonder why so few folks with money are not inclined to kick in $$$ here. I have seen all sorts of "conservative" folks fund the "pro-prosecution" side on the death penalty and MJ debates, and I hear all this talk from the left about how the private prison industry makes so much money from mass incarceration. Why are these keeping their wallets closed re Prop 57?

Posted by: Doug B. | Nov 1, 2016 11:51:51 AM

Given that Brown hasn't exactly been talking to prosecutors either before or after coming up with 57, I fear that we can't speak to his "cleverness" in picking this election. Given the way it was rushed in taking over the original version of 57, I suspect it was more of a opportunity thrown in his lap.

Nor do I know much about the lack of $ for the No on 57 side except to note the many elected DA's who have been going around the state begging for cash. The 2 death penalty initiatives (Props 66 & 62) may well have something to do with it but I doubt the MJ initiative does. We lost that battle a while ago. As for "private prison" money, I think that is a shibboleth in California along the lines of insider 9-11 attacks. If you check the CDCR population statistics, we have 1 private prison (California City) that is leased/operated by CDCR, as well as some Community Correctional Facilities (think halfway houses). The 3 Judge panel running the prison system have made it quite clear that they want to abolish the practice of sending some inmates out of state.

Thanks for the questions Professor. Especially since it gives me the chance to repeat my previous Q, how many voters do you believe will be mislead into voting for 57 due to its title?

Posted by: Cal. Prosecutor | Nov 1, 2016 1:22:17 PM

Like all good law profs, Cal. Prosecutor, I will respond to your question with a (too) short answer and then some explanation/further queries:

A. ANSWER: It depends. Based on what I know about Prop 57, it seems the "rehabilitation" part of the title is not misleading, but that the "public safety" part may well be. Accordingly, I think it telling (and perhaps misleading) that the title starts with the phrase "public safety." Thus I would guess that many voters without the time or interest to get fully informed may be at risk of wrongly thinking this is a prosecutor-supported initiative designed to enhance public safety. Ergo the need for $$$ to inform voters about the realities of Prop 57.


1. Do you think Jerry Brown really thinks his proposals will HURT public safety more than, say, being subject to still more reform mandates from the Plata players? His comments suggest he is driven by a desire to get out from under the thumb of the Plata problem. Do you think he is foolish for fearing even worse federal intervention?

2. Do you think a more honest and clear political/public conversation about sentencing reform in California --- not to mention wiser responses to the Plata problem --- would have been more likely if various proposals for creating a California sentencing commission had been embraced at some point over the last decade? I share your concern about California being a poster child for how not to reform a criminal justice system, but I tie this reality back to the unfortunate opposition to creating a good state sentencing commission that, in many other states, helps advance a more honest and clear political/public conversation about sentencing reform in California.

Posted by: Doug B. | Nov 1, 2016 1:52:17 PM

"Prisons don't rehabilitate, they don't punish, they don't protect, so what the hell do they do?" I think that this incredible statement speaks volumes about the Governor's thought process in this matter. Because in regards to Plata and further releases by the 3 Judge Panel, to quote AG Harris in the October report to said judges, "As of October 12, 2016, 113,845 inmates were housed in the State's 34 adult institutions...The State's prison population is approximately 135.1% of design capacity...". CDCR has been under the artificial limit imposed by Judges Reinhardt, Karlton (may he rest in peace) & Henderson for almost 2 years.

As to the sentencing commission "reform" idea, I hope you will permit an observation that reform is rather a loaded term. Given the way that we are seeing the historic gains in the fight against crime reversed & crime stats jumping back up from 2014 to 2015, I fail to see how a return to the failed policies of the 70's constitutes reform.

As to a "good" sentencing commission, any such that would be picked by the current Governor would likely be heavy on the likes of academics, inmate advocates, the ACLU and light on law enforcement and victim's rights groups. Even if such a commission was picked in a neutral fashion, I would invite you to consider the age-old aphorism that a camel is a horse designed by committee...

Posted by: Cal. Prosecutor | Nov 1, 2016 2:37:17 PM

Cal. Prosecutor: The creations of sentencing commission in the federal system and in so many states was itself a direct response to the "failed policies of the 70s." (E.g., I trust you realize the US Sentencing Commission was created in 1984, and most state sentencing commissions were likewise created in the 1980s and 1990s.) It is telling and problematic that you view the idea of just creating a state sentencing commission to collect data and make recommendations about sentencing policy and practice to be a part of the failed policies of the 70s.

I understand why you fear a commission, but what I hope to get you to appreciate is that this fear (and advocacy by prosecutors against such an institution going back to 2007) is a significant contributor to developments like Plata, and realignment and Prop 47 and now Prop 57. I am pretty sure the 3 Judge Panel --- and certainly Justice Kennedy --- would have been far more likely to defer to Cal officials saying "we got this handed" if it seemed that a responsible set of policy players (e.g., a state sentencing commission) was working on this issue consistently rather than just having these issues get episodic attention if and only when a crisis is afoot.

Posted by: Doug B. | Nov 1, 2016 2:57:52 PM

"A responsible set of policy players" rather begs the question, does it not?

The "fear" that you speak of deals with the knowledge we have that the tough on crime policies so often bemoaned just happened to coincide with the historic reductions in crime in California I previously mentioned. Even the worst economic recession since 1929 failed to keep those crime rates from falling. I won't speak for other states but I know firsthand that prosecutors in this state are generally for things that would reduce crime and generally against those that would increase crime. We work with crime victims on a daily basis. We see the effects of crime up close and personal. I would posit that is why we have opposed a Trojan Horse like a sentencing commission.

We made the mistake of sitting back to wait and see when Realignment, Prop. 36 & Prop. 47 all passed. We began to become alarmed when the current administration in Sacramento worked in tandem with the 3 Judge Panel to create the so-called Non-Violent Second Strike Release program, the Youthful Offender Release program, not to mention the expanded Youthful Offender Release program, Elderly Parole program, greatly expanded conduct credits and the like. All this is also why we are so adamantly opposed to Prop. 57.

As to Justice Reinhardt "deferring" to anyone, I hope that you will permit an observation that such an action seems wildly incongruent with his many anti-law enforcement opinions. I have a slight hunch that things might have turned out very differently had the 3 Judge Panel consisted of anyone other than 3 of the most pro-criminal judges in the western U.S.

The bottom line is that we are going to have to agree to disagree that a sentencing commission would have been the panacea that you posit.

Posted by: Cal. Prosecutor | Nov 1, 2016 3:34:38 PM

Fair points, CP, though please understand I am not asserting a Cal sentencing commission would have been a "panacea," but merely that it could have helped your cause (if only by making it harder for Realignment, Prop. 36 & Prop. 47 all to get passed despite prosecutorial opposition).

Indeed, even if designed to act like "a Trojan Horse," I seriously doubt a serious commission would ever (even by stealth) advocate against policies and practices that have been shown to reduce crime in a cost effective and constitutional way. Plata reflects the reality that, according to the Supreme Court (which affirmed the orders of the 3 Judge Panel), your state was not complying with the constitution when increasing incarceration without building more prisons. A sentencing commission might well have helped find a better means to that end (though I agree that doing so would only have helped with swing voter Kennedy, not fixed voter Reinhardt).

I am surely an ivory-tower optimist on this front, but every other state has been pretty happy with the help its sentencing commission provides on a number of fronts even though their left v. right politics are comparable in various ways. I especially mean to highlight that the problems you now reasonably bemoan seem to me a unique creation of California's uniquely short-sighted politics, not an inevitable challenge of sound criminal justice reform policies. (The same can be said about your death penalty problems, of course, and I fear the results this coming election are at risk of making this dysfunction even worse and even more wasteful for California taxpayers.)

Posted by: Doug B. | Nov 1, 2016 3:53:50 PM

The issues -- and unfortunately a referendum is a lousy way to discuss the exact percentages -- are how much of a sentence should an offender have to serve and what time should an offender serve for a particular offense.

I work in a state that has jury sentencing (at least for first time offenders). In those cases in which the jury had the ability to recommend a sentence, one of the first questions would be how much of the sentence the defendant would serve before parole. When I was a law student at the tail end of the U.S. Parole Commission, the majority of the inmates that I assisted at parole hearings had sentences somewhere between in which the parole guidelines fell either very close to one-third of the sentence (the minimum that they had to serve) or two-thirds of their sentences (the maximum that they had to serve) -- in other words, judges were tailoring their sentences to reduce the discretion of the parole commission.

If I have learned anything in my career in criminal law, they are: 1) everybody has an opinion as to what the real sentence of a particular offense should be; 2) people -- judges, prosecutors, defendants, victims -- want to know what the real sentence for an offense is; 3) judges and juries try to tailor sentences to assure that the defendant will, at least, serve what they think that the real sentence will be.

Posted by: tmm | Nov 1, 2016 5:45:12 PM

I believe that this proposition is coming at a very good time. For the past? 10 years what was it the 9th appellate court ordered cdcr to release? 20,00 inmates. So far they've come up with prop 47 and 36.
All these actions were made attempting to let inmates free. Well I am a convict, I had a E# and the only reason I am off parole is because prop 47 came into effect and I got put on post community supervision.
So what is the answer? Lock am up? Let them go? Will this proposition be retroactive? Please inform me.

Posted by: Mike Levin | Dec 16, 2016 5:53:31 AM

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