Criminal Justice Reform: The Long & Winding Road

Joseph Tully

The moral arc of the universe may bend towards justice, but it sometimes takes much longer than expected and it twists and turns along the way. California has had significant criminal justice reform within recent times. Were it not for these reforms, our state would have collapsed under the weight of our lust for vengeance as opposed to a virtuous adherence to fairness. If you are unfamiliar with the major reforms that our state has implemented, below are short summaries of the more notable propositions and statutes.

Proposition 36 (2000)

Also known as “The Substance Abuse and Crime Prevention Act of 2000,” Proposition 36 allows eligible defendants to have their criminal charges or conviction dismissed if they successfully complete a court-approved drug treatment program. Such programs include, drug education outpatient services or residential treatment, detoxification services or narcotic replacement therapy or aftercare services. However, it does not include rehabilitation programs offered in prisons and jail facilities.

Proposition 36 requires that first- and second-time defendants convicted of nonviolent drug possession offenses receive probation rather than be sent to prison.

AB 109 (Realignment) 2011

AB 109 was a response to the Supreme Court decision that held the California Department of Corrections and Rehabilitation had violated inmates’ Eighth Amendment rights protecting them from cruel and unusual punishment.  California needed to reduce its prison population from 190 percent to 137.5 percent of design capacity, the minimum level believed necessary for the prison system to provide adequate mental health and medical care.

According to the Public Policy Institute of California’s website, “two features of the reform were aimed at quickly reducing the prison population. First, most parolees who violate the terms of their release but have not been convicted of a new felony are no longer sent to prison. Instead, they serve a short time in county jails or custody alternatives. Second, most lower-level offenders with no record of sexual, violent, or serious crimes now serve sentences in county jail or under county probation supervision.”

Realignment did reduce the prison population, but almost all of the decline took place during the first year and was not enough to meet the judicial target. It took California passing Proposition 47 to meet that goal.

Proposition 36 (Three Strikes) 2012

Proposition 36 was an amendment to Proposition 184, which was the “Three Strikes” law. Our three strikes sentencing law was amended to put someone away for life for three strikes, three serious or violent crimes, not two strikes and a foul tip as the previous law did. Proposition 36 revised the three strikes law to impose a life sentence only when a new felony conviction is serious or violent.

The initiative also authorized re-sentencing offenders currently serving life sentences if their third strike conviction was not serious or violent and a judge determined that their sentence did not pose unreasonable risk to public safety.

But you shouldn’t think of the 2012 Proposition 36 as making things easier for bad criminals because it maintained life sentences for felons with nonserious, non-violent third strikes if their prior convictions were for rape, murder, or child molestation.

This amendment saved our state approximately $90 million a year.


Proposition 47 (Reduced Penalties) 2014

Proposition 47 reduced the classification of most “nonserious and nonviolent property and drug crimes” from felonies to misdemeanors. In general, it downgraded “nonserious, nonviolent crimes” to misdemeanors unless the defendant had prior convictions for murder, rape, certain sex offenses or certain gun crimes.

It also permitted re-sentencing for those currently serving a prison sentence for any of the offenses that the initiative reduced to misdemeanors. According to Lenore Anderson of Californians for Safety and Justice, under Proposition 47, ten thousand inmates were eligible for resentencing.  But this proposition also required a review of criminal history and a risk assessment of any individual before re-sentencing to ensure that he/she do not pose a risk to the public.

Following Proposition 47’s approval, inmate populations in prisons began to fall across California. It was estimated that state savings would range from $100 million to $200 million beginning in the 2016-17 fiscal year.


Proposition 57 (Revolving Door) 2016

The goal of Proposition 57 was to enhance public safety and stop the “revolving door of crime” by emphasizing rehabilitation and preventing federal courts from releasing inmates.

Under Proposition 57, inmates were incentivized to take responsibility for their own rehabilitation with credit-earning opportunities for sustained good behavior, as well as participation in prison programs and activities. According to the California Department of Corrections & Rehabilitation’s website, Proposition 57 “also moved up parole consideration of nonviolent offenders who have served the full-term of the sentence for their primary offense and who demonstrate that their release to the community would not pose an unreasonable risk of violence to the community.” These changes encourage “improved inmate behavior, a safer prison environment for inmates and staff alike, and give inmates skills and tools to be more productive members of society once they complete their incarceration and transition to supervision.”

This proposition is continuing to create changes. For example, on December 11, 2018, the California Department of Corrections filed emergency regulations with the Office of Administrative Law to expand nonviolent offender parole consideration under Proposition 57 to nonviolent third strikers.


Proposition 64 (Marijuana Legalization) 2016

Proposition 64 allows adults aged 21 years or older to possess and use marijuana for recreational purposes. It also changed marijuana crimes from felonies to misdemeanors. The measure created two new taxes: one levied on cultivation and the other on retail price. Prop. 64 was designed to allocate revenue from the taxes to be spent on drug research, treatment, enforcement, health and safety grants addressing marijuana, youth programs, and preventing environmental damage resulting from illegal marijuana production. In reality, the taxes are choking the legal marijuana industry before it can get started.

Proposition 64 also allowed individuals serving criminal sentences for activities made legal under the measure to be eligible for re-sentencing and people with past convictions to reduce or dismiss their charges.

Joseph Tully is a criminal defense attorney, certified specialist in criminal law by the California State Bar. He has been in private practice since 2001, co-founding Tully & Weiss with law partner, Jack Weiss, after getting his experience at the Fresno County Public Defender’s office starting in 1999. Tully is the Section Leader of the CCCBA Criminal Section.