9

Taking Criminal Justice Reform Seriously

Mass incarceration was and still is about race, but it is also about poverty, and especially race and poverty combined. The people locked up have always been disproportionately poor and of color, and for the most part their incarceration has ensured that they would stay poor for the rest of their lives. Mass incarceration has been a political and economic coup. Beginning with President Nixon’s “southern strategy,” it brought Dixiecrat white politicians into the Republican fold and was so successful that it became a national strategy. The combination of race-baiting without the n-word and filling the jails and prisons with black men protected Jim Crow in the South and fueled the Republican Party in the rest of the country. The old guard held on to the white vote and weakened both the emerging black political power and the growing economic strength of the black community. A brilliant move: the beginning of the end of the Second Reconstruction, reconstituted with a modern touch.

The economic value of mass incarceration became even more important with the deindustrialization and globalization of the 1970s. When I was the youth corrections commissioner of New York in the last half of the 1970s and vice chair of the National Child Labor Committee beginning in the 1980s, I saw the growing unemployment crisis among young African Americans and Latinos, although I did not fully understand what it was about. The economy did not need young people, especially young people of color, so if they were not in college, as was the case for many, they were unwanted in the job market until they were twenty-two or twenty-three. If there were not enough jobs, the existing jobs had to be rationed in some way. Intentionally or not, the criminalization of poverty served the needs of the labor market, and served it well.

Mass incarceration became a sorting mechanism. Not only were (and still are) young men and some women, disproportionately people of color, kept out of the labor market while in prison, but they are effectively barred for the rest of their lives from jobs for which they would otherwise be qualified. Not only is the fact of a criminal record (or just an arrest record) a bar or at least a stigma, especially when coupled with the race of the applicant, but the time spent in prison also creates an experiential gap in the ex-inmate’s résumé and a loss of networking assets.¹

We have to end unjustifiable collateral consequences and mass incarceration, but doing so is only part of what we have to do to make things right. The labor market is broken. There are not enough jobs, let alone enough good jobs. We have to begin with an honest discussion about what is wrong, because only then can we fix it. Our goals of improving schooling, helping families, getting more affordable housing, attending to health and mental health needs, investing in childcare, and ending racism all require us to fix the labor market. (The collateral consequence of taking away the right to vote is one way operatives of mass incarceration keep the policy in place.)

EXPUNGEMENT

Where available, expungement, the process of erasing criminal records that can wreck people’s lives, negates the collateral consequences of a criminal record far more effectively than ameliorating individual bars to employment, education, and housing one by one. For example, nearly 9 in 10 employers, 4 out of 5 landlords, and 3 in 5 colleges use background checks, which, unless criminal records are expunged, put employment, housing, and higher education out of reach for many people.² Broadening the application of expungement will be very helpful, given the 75 to 100 million people with criminal records.

Nineteen states allow some felony convictions to be expunged and twenty-three allow some misdemeanor convictions to be expunged. The trend is positive—twenty-three states and the District of Columbia have expanded their expungement laws since 2000.

As of 2015, for example, Pennsylvania allowed expungement for charges that did not result in a conviction (two-thirds of states do this) and for convictions for summary offenses (such as loitering or disorderly conduct) when five years have passed without further arrest. Also eligible were convictions for underage drinking, and convictions of people over seventy who have not been arrested for ten years. The state also allowed expungement after successful participation in diversion programs. Sharon Dietrich of Community Legal Services and other lawyers in Pennsylvania succeed in getting thousands of expungements every year.

In 2016, Pennsylvania governor Tom Wolf also signed a law that allowed the sealing of some old and minor misdemeanor conviction records. The records will still be available to law enforcement and state licensing agencies but not to the public, employers, or landlords, and the offenders would not have to tell employers or landlords that the records exist. The offenses covered include drug possession, DUI, minor theft, prostitution, and disorderly conduct. The offender cannot have been arrested or convicted for ten years after the original incarceration or probation is completed, and can never have been convicted of an offense more serious than the one for which the person seeks sealing or been convicted of four minor misdemeanor offenses altogether.³

This is certainly good news, but Pennsylvania’s story also illustrates the difficulty of expanding expungement. Dietrich joined Community Legal Services in 1987 as an employment lawyer. In the early 1990s, she began seeing clients whose complaint was discrimination because they had a criminal record. She and colleagues began taking expungement and other criminal record cases, and a majority of their employment work is now criminal record cases. She and her colleagues and other lawyers in the city, including private pro bono practitioners, obtained 8,500 expungements in Philadelphia in 2015. Statewide the total was more than 90,000.

The total among the local lawyers has gone up substantially in the last few years because of Mike Hollander, who is both a lawyer and a computer genius. Hollander developed a software program, Expungement Generator, that builds petitions quickly. It can analyze criminal dockets for expungement eligibility, and it reduces petition preparation time from around half an hour to about two minutes. Dietrich took me to court to see the process for myself. These cases—and there are plenty of them—involve either no conviction or convictions for very low-level offenses. Even so, the district attorney opposes some of them. In the morning there is a meeting between a DA and the applicant’s lawyer (if the applicant has one), to see what motions are uncontested. About 10 to 20 percent of the motions are contested, compared to 40 to 50 percent as recently as 2014. This was “before we established the legal standards for the new expungement judge and the DA got used to its objections being regularly denied,” Dietrich said.

We arrived shortly after ten o’clock, when court was supposed to be in session. Bruce the bailiff was there, but the judge was not. There was a crowd, some with lawyers, most without. The ones with lawyers go first.

Mike Lee, a lawyer from a nonprofit called PLSE (Philadelphia Lawyers for Social Equity), said hello to Dietrich. He had the first two cases of the day and previewed the facts. The first was a man with other expungements. The current one was for a 1996 substance-abuse-related arrest. He had no additional arrests, had been clean and sober for twelve years, had a job as a foreman at the city water company, and was a grandfather who helped care for his grandchildren. The case file no longer existed due to a periodic record purge, so the prosecutor had little to nothing on which to base an argument that the motion should be denied. The second was a man whose vengeful ex-girlfriend had accused him of sexual impropriety. The police had searched his house and found nothing. He had no criminal record and the charges were dropped without a trial. Nonetheless, the DA was opposing the motions. Why would the district attorney do that? Dietrich thinks some young prosecutors oppose motions to avoid getting into trouble with their superiors.

At about eleven, the judge showed up. He did not sit down. He walked back and forth behind the bench, seeming rather disengaged. Each side argued and at the end, in each case, without any pause, he said, “Granted.” It was unclear whether he would have said more if he denied a motion, but Dietrich said the then-current judge denied motions for expungement only about 5 percent of the time.

Why is a judge necessary? Why not automatically expunge records when people are acquitted or never tried or are guilty of a low-level infraction and do not have another arrest for a period of time? After all, people with nonviolent convictions who do not commit other crimes within four to seven years are no more likely to do so than the general population is.⁴

Dietrich and her colleagues, especially Rebecca Vallas, who is now at the Center for American Progress, have spearheaded a legislative campaign in Pennsylvania that they are calling Clean Slate. Under Clean Slate, minor nonviolent cases would be automatically sealed (still available to law enforcement but not to the public) after ten years if there has been no further felony or misdemeanor convictions. For summary offenses the required crime-free period would be five years. The legislation signed by Governor Wolf was a constructive step, but Clean Slate shows how much more needs to be done.

Clean Slate would save significant time and money and, most important, help far more people. Two hundred thousand felony and misdemeanor cases are initiated in Pennsylvania each year, of which 34 percent do not end in conviction. These cases would be expunged quickly. Many of the remaining 66 percent would become eligible for sealing after ten years if there is no further conviction. Twenty thousand summary cases annually in Philadelphia end in conviction and would be eligible for sealing after five years. Mike Hollander says it “would be an absolutely transformative policy.”

The work of Community Legal Services on criminal records occurs on many fronts. In 2000, it and pro bono counsel invoked the state constitution to challenge a lifetime bar on a large group of people with criminal records from working in nursing homes and other health-related facilities, which was ultimately found to be unconstitutional. Dietrich, Vallas, and their colleagues also work statewide and nationally to share their successful strategies. Dietrich counts eighty organizations in thirty-one states that do expungement work across the country.

DECARCERATION

Decarceration, properly done, means not only fewer people incarcerated but also reinvestment of the savings into education, jobs, affordable housing, community strengthening, and anything and everything else that plugs the pipeline to prison. Instead of criminalizing the poor, we need adequate investment in ending poverty.

Decarceration is difficult. Even with crime rates going down and the much ballyhooed involvement of the Koch brothers, Grover Norquist, and Newt Gingrich, jail and prison populations show mixed trends. On the plus side, some thirty states have legislated some sentencing reform and alternatives to incarceration.⁵ Nonetheless, about half the states still show annual increases and about half show decreases (most of which are small), although a few states have had quite impressive reductions with little or no adverse effect on public safety. Nationally, state prison populations have dropped only about 3.5 percent since they topped out in 2009 and jail populations have gone down a little over 5 percent since they started down from their peak in 2008.⁶ These modest declines occurred after the nationwide state prison population grew 10 percent from 1999 to 2012.⁷

Correctional officer unions, for-profit prisons and associated businesses, prosecutors, and police have political clout. The magnitude of budget savings lags behind the drop in prison populations just about everywhere. Then add in the challenges in achieving reinvestment of the proceeds of decarceration, modest as those may be. Readers of a certain age will remember the peace dividend that some said would appear when the war in Vietnam ended. It did not.

Jack Cowley, a retired prison warden from Oklahoma, told the New York Times, “It’s hard for me not to be cynical about it. Think about the size of our system, all the judges and lawyers, putting their kids through college, people that make leg irons, Tasers. Crime is driving the train. It’s like a business that is too big to fail.”⁸

And one highly publicized violent crime can stop the momentum. Arkansas relaxed standards for parole in 2011 to save money. In 2013, a man with many past parole violations and robbery convictions killed a young man in Little Rock. The state board of corrections immediately reinstituted the tougher standards.⁹

But some states have made impressive strides. Connecticut, New York, New Jersey, and California have done well. For them the next level of decarceration—considering more appropriate sentences for serious offenses—is in sight. They give us hope.

CONNECTICUT

Connecticut’s prison population began falling from its all-time high in 2008 and as of 2016 had decreased 25 percent. The New York Times lauded the leadership of Governor Dannel Malloy, also noting the state’s repeal of the death penalty, legalizing of medical marijuana, and enactment of some of the strictest gun laws in the country. In 2015 the governor proposed a “Second Chance Society” package of bills, which passed with bipartisan support. The measures included reclassifying simple drug possession as a misdemeanor, ending mandatory minimum sentences for nonviolent drug possession, expediting parole hearings for people convicted for nonviolent crimes, and simplifying the pardon process. The bills also included body cameras for all state troopers, recruitment of more minority officers, and providing independent investigations of police officer use of deadly force.

Malloy’s reforms have paid off. Raising the age of adult criminal responsibility to eighteen from sixteen (then leaving only New York and North Carolina with the age of sixteen as the adult threshold) was followed by a 50 percent drop in incarceration of those between eighteen and twenty-one. Crime is at a forty-eight-year low. And the state has closed three prisons so far.¹⁰

NEW YORK

New York has seen major declines not only in its state prison population but also in its jail population (remember, a decrease in quantity does not necessarily mean an improvement in quality—think Rikers) and its parole and probation populations—one of the few states with declines in all areas. The prison population dropped 26 percent from 1999 to 2012.¹¹ These trends stemmed from a big decline in felony crimes and felony drug arrests, substantial reform of onerous sentencing statutes, and an increase in alternatives to incarceration.¹² Why these developments occurred and why they are not even larger are two important questions.

Advocacy is the driver of these declines. The Correctional Association of New York, the Legal Action Center, the Vera Institute, the Brennan Center, the Fortune Society, the Drug Policy Alliance, the Center for Court Innovation, public defenders, bar leaders, academics, foundations, some elected officials, journalists, and many others focused on drug law and enforcement reform and did so over a multiyear effort. The focus was the longstanding and long-criticized Rockefeller drug laws. Driven by the anti-crime frenzy in the 1990s, felony drug arrests in New York City had hit an all-time high of 45,978 in 1998. Major public campaigns—Drop the Rock was one, Real Reform another—went on for a decade-plus until 2009, when the Rockefeller drug laws were finally reformed. Beginning in 1999, polls showed support for reform, with respondents saying they were more likely to vote for candidates who favored reform. At the same time, the New York Police Department moved away from prioritizing felony drug arrests. (“Felony” included possession of small amounts of drugs.) By 2011, the number of felony arrests had dropped to 21,149.¹³

The city’s prison population also declined as it expanded diversion programs that offered felony drug offenders alternative dispositions and increased investment in treatment programs. The community courts in the city, led by Red Hook Community Justice Center, played an important role in preventing incarceration; people processed in the regular courts were fifteen times more likely to be incarcerated than those served at Red Hook.¹⁴

Continuing the trend of decarceration, the New York City Council voted in 2016 to create a civil process for the most common low-level infractions that are within its jurisdiction, including public drinking, public urination, littering, excessive noise, and being in a park after dark. Bicycling on the sidewalk and jumping subway turnstiles had already been made into civil violations. Council officials estimated that a third of the 300,000 offenses that now result in arrests will soon be handled as civil violations.¹⁵

Still, the crime rates suggest that the incarceration rates should have dropped more. According to New York police records, the incidence of seven major felonies in the city fell from 184,652 to 105,453 from 2000 to 2015, a decrease in excess of 40 percent. Why crime rates went down so impressively is a much debated question in itself, with law enforcement taking credit and others pointing to a new civility in the city after 9/11, and still others not sure what exactly happened.

Why incarceration did not decrease as much is clearer. Laws enacted in the 1990s that lengthened sentences are the major reason. New York lengthened sentences after the 1994 crime bill that President Clinton promoted and signed. The law provided more than $9 billion to states to build more prisons on condition that they enacted so-called truth in sentencing laws that resulted in longer sentences. New York received $216 million under this program, and in the 1990s alone added more than twelve thousand prison beds and increased its prison population by 28 percent. Nationally, the number of state and federal adult prisons grew by 43 percent from 1,277 in 1990 to 1,821 in 2005.¹⁶

Even as prison populations later declined, prison budgets did not. The annual state Department of Correctional Services budget actually increased from $1.6 billion in fiscal year 1998–99 to $2.5 billion in 2006–7 at the same time as the prisons held eight thousand fewer inmates. No prisons were closed during that period.¹⁷ The corrections union and upstate legislators did not want members and constituents to lose jobs. The budget finally stabilized in 2008, and in 2011 the state closed ten prisons and other facilities.

NEW JERSEY

New Jersey is another relatively large state that accomplished significant prison downsizing, reducing its prison population by 26 percent from 1999 to 2012. A number of factors came together in New Jersey. One ingredient was the substantial drop in crime—violent crime dropped by 30 percent and property crime by 31 percent. Also key was successful litigation in 2001 against the Parole Board for dragging its heels on cases. The settlement of the lawsuit brought a commitment to move more quickly. Parole approvals increased from 30 percent to 51 percent, and have remained at the higher level. The state also reduced the incidence of reincarcerating parolees for technical violations. Further, drug law reform played an important role. A sentencing commission in 2004 caused fairer application of the state’s “drug-free zone” law by ironing out racial disparities in its utilization, and the legislature enacted a law to end the mandatory minimum sentences in the school drug-free-zone law. The state attorney general issued guidelines to end prosecution of the lowest drug offenses, and the increased use of drug courts helped to avoid incarceration. Finally, Governor Christie signed a bipartisan bill providing bail reforms that will affect jail numbers and indirectly prison numbers.¹⁸

The reforms began before Christie took office, but he has been a strong reform supporter, making New Jersey an example of bipartisan cooperation. Federally, the bipartisan leadership of Senator Cory Booker, with Senator Rand Paul, toward decarceration may well stem in part from Booker’s New Jersey experience.

CALIFORNIA

California often leads the country in change, sometimes for good and sometimes not. For unique reasons, California has made game-changing institutional progress that has important implications for the entire country.

In 2011, Supreme Court justice Anthony Kennedy got out of bed on the left side one morning and told California that the Constitution required action to reduce overcrowding in its prisons. After Governor Jerry Brown and the legislature responded in a variety of ways, Californians used the ballot initiative process to move more substantially toward decarceration in the historic 2014 Proposition 47.

Not so long ago, California was leading in the other direction, with its “three strikes” law that imposed sentences of twenty-five years to life on people convicted of a third felony no matter how minor (followed by twenty-six other states and the federal government), and lengthening sentences on five occasions in total. In 2006, the state’s prison population hit its high mark, at 162,804, with the state having built 22 prisons over a 25-year period. By the beginning of 2016, though, it had fallen to 112,792. Some of the decline was because crime trended down. Violent crime declined by 21 percent and property crime by 13 percent between 2006 and 2012.¹⁹ But there was a lot more to the story, and it is still going on.

In 2007 came an important change in parole policy. Previously, all parolees were subject to the same length of time and restrictions whether their offense was serious or minor. The policy was one of the strictest in the country, and a large number of parolees were returned to prison. The new policy reduced supervision to six months for low-level offenses if the parolee complied with certain conditions. The number of parole revocations dropped significantly.

The first big legislative step was in 2009, when Governor Arnold Schwarzenegger was in office with a solidly Democratic legislature. The legislature enacted the California Community Corrections Performance Incentive Act. Concerned about prison overcrowding, the law sought to reduce the prison population further by lowering the number of parolees revoked by the counties and sent back to prison. Imaginatively, the state offered counties a share of the money saved. By 2011, the revocations dropped 32 percent and saved the state $284 million ($136 million went to local probation and parole agencies). These revocations had been “technical violations”—parole violations that did not involve committing a new crime.²⁰

Then came Justice Kennedy’s opinion in Brown v. Plata.²¹ California’s prisons had been at 200 percent of capacity for eleven years. The Court ordered the state to reduce capacity to 137.5 percent within two years. By then, Brown was back in office and the state again thought outside the box. The legislature enacted the Public Safety Realignment Act of 2011 (“Realignment”).

Realignment had three features. The “non-non-nons” meant that people with nonviolent, non-sex-related, and non-serious offenses could no longer be housed in state prisons, only in county jails. Another was that people with those kinds of offenses not only would have shorter parole periods but also would be supervised by county officials rather than the state. And people with technical violations of probation or parole could be sent only to jail, not prison, and for shorter lengths of time.

To help the counties with Realignment, the state increased funding. The counties were initially terrified and their jail populations did grow, but the combined state and county total went down considerably. Still, even with the additional state support, overcrowding of the jails continued and jails coped for a time by releasing people guilty of misdemeanors before their sentences were fully served.²²

The next move, after a ballot initiative in 1996 legalizing medical marijuana and another in 2000 requiring treatment instead of incarceration for low-level drug users, was a 2012 ballot initiative, Proposition 36, which scaled back the “three strikes” law. This led to the release of more than 2,100 people who had been sentenced to life without parole, some of whom had a third strike as minor as shoplifting.²³ Throughout, predictions of crime waves were common, but at every step crime rates continued to go down.²⁴

Then came Proposition 47, the Safe Neighborhoods and Schools Act—the biggest step so far. Adopted in November 2014 by a twenty-point margin, it has four provisions, including making California the first state to make possession of any drug, even cocaine and heroin, a misdemeanor. Prop 47 is important in many ways, but the changes in drug possession for personal use are the biggest dents in the so-called war on drugs that we have seen in any state. Incarceration of drug users was a major tool in mass incarceration. Repositioning it as a public health issue is a crucial step, although a responsibility comes with it: to invest in funds for treatment of addiction and funding for community mental health.

The law reclassifies six low-end drug and petty-theft offenses from being chargeable as either felonies or misdemeanors to only misdemeanors, provided the accused does not have a previous conviction for a serious felony. For those who qualify, it means a sentence to jail instead of prison, or a fine, or both, or probation. Thefts of items totaling $950 in value or less are categorized as misdemeanors. About 80 percent of the cases affected are for drug possession for personal use. Around forty thousand people were being sent to prison each year on these offenses, so just changing the rules for those crimes means that every year forty thousand people will be sent to jail instead of prison. Next, the law allows people serving time or on probation or parole for any of the listed crimes to ask a judge for resentencing as a misdemeanor, provided they do not pose an unreasonable risk to public safety.

Further, the reform allows people with a past conviction on any of the six offenses to apply to have it redesignated as a misdemeanor, provided there is not another prior serious conviction. Even though the time has already been served, reclassification as a misdemeanor will reduce but not end all collateral consequences. This will be the largest category of applications, estimated to include a million eligible people.

Finally, savings from reduced prison costs are being channeled to other areas: 65 percent for drug treatment, mental health treatment, and supportive housing, 25 percent for efforts to reduce school truancy, and 10 percent for trauma recovery services for crime victims. There is nothing in the new law that spells out how much money will go to counties and how much to the state.²⁵ The total saving was originally estimated by the state Legislative Analyst’s Office at $100 to $200 million annually, although it has turned out to be less.

Prop 47 is a phenomenal success, but it is only a part of an ongoing process. More funds must be found. Its maximum success depends on more jobs, more mental health and addiction treatment services, and more affordable housing for those who would otherwise have been locked up. Otherwise, the good intentions of Prop 47 will give way to more homelessness, more unemployment, more visible mental health and drug issues, and more reincarceration. That said, it is worth repeating that Prop 47 is a stunning success. Proposition 47 did not come out of nowhere, and its success was not accidental.

Prop 47 was the brainstorm of Lenore Anderson, a well-known and respected lawyer and public policy advocate. She and her staff and partners put together a coalition that included law enforcement leaders and public figures of both major parties. The chairs were the former San Diego chief of police, Bill Lansdowne, and the San Francisco district attorney, George Gascón. The public endorsers included Rand Paul, Newt Gingrich, and B. Wayne Hughes Jr., a conservative philanthropist who made a major gift to the campaign. The coalition included the ACLU, prominent victims’ rights advocates, and hundreds of religious leaders. Anderson hired Robert Rooks, an organizer close to the unions, and Ace Smith, a political and communications guru who knew the issues and how to shape a message to pitch it.²⁶

Thousands of volunteers were recruited and they in turn contacted more than 300,000 voters and ran more than two hundred voter mobilization events in fifteen key counties by the time they were done. California Calls, a civic engagement organization, and PICO, a nationally respected entity that does community organizing in a faith-related framework, organized a phone bank to get hundreds of spiritual leaders to tell politicians of their support for reform. California Calls and PICO also pursued a civil rights perspective in reaching out to minorities to make sure of their support. Gascón and Lansdowne and other law enforcement leaders spoke out actively and at least caused many people in law enforcement to sit the fight out.²⁷

Anderson and her organization are now moving forward. They have funding to give strategic advice to other state-based organizations pushing decarceration in an eight-year campaign using the political process. Of course, other states are far from as blue as California and very few if any have the kind of ballot measure structure that allows change agents to bypass the legislative process. Nonetheless, there is momentum now and this is a timely moment to strike.²⁸

The immediate challenge in California is making the most of Prop 47 and pushing back those who continue to express fears of a new crime wave. After a year, crime rates were up slightly in nine of the state’s largest cities.²⁹ Prop 47 advocates point to continuing record lows in San Diego County, among others where crime rates did not change.³⁰ The violent crime rate in Los Angeles increased 38 percent in 2015 and 2016, but it is still at a historical low, though it is unclear that the rate is related to Prop 47 since the reform did not apply to violent crimes.³¹ One study found that counties that invested in innovative approaches to reentry had less recidivism than counties with status quo policies focusing on enforcement.³² Bottom line, statewide crime rates overall in 2015 were the lowest since 1960.

A rumor among police officers is that misdemeanor arrests are no longer allowed.³³ Another misconception is that Prop 47 is a “get-out-of-jail-free card” because misdemeanor arrests are rendered pointless by short sentences that make the arrests not worth the trouble.³⁴

The press played up a young man named Semisi Sina, a meth addict who excelled in committing thefts of property such as bicycles worth less than $950, and carried out his now-misdemeanor crimes with minor consequences at most. But the press failed to point out that Sina already had thirteen arrests and five convictions before Prop 47 kicked in. In fact, the pattern of misdemeanor arrests around the state is checkered, with some counties up quite a bit and others down considerably, suggesting that politics may be playing a role in arrest policies.³⁵

Another criticism of Prop 47 is that removal of the “hammer” of a long prison stay, which incentivized drug offenders to choose treatment, will mean that addicts charged with misdemeanors will prefer shorter turns in jail to longer treatment commitments. Censuses are down in some treatment programs, so the programs are branching out in their recruitment policies since there are plenty of addicts who have not fallen into the clutches of the law. Drug court judges are also looking for non-drug offenders whose crime was driven by drug abuse.

Realignment did cause early releases from jails, and critics complain that there were times when a misdemeanor conviction meant doing only sixty days. But after Prop 47 went into effect, narcotics arrests dropped enough in LA city and county to abate the overcrowding in the jail, and inmates now complete 70 percent of their sentences, meaning there is more of a “hammer” than there was for a while.³⁶ More broadly, we can hope we are finally in a transition toward dealing with drug addiction as a public health matter instead of a law enforcement matter. However, achieving this transition will not occur overnight.

While the critics are still criticizing, others are helping to implement the law. LA county supervisor Mark Ridley-Thomas says that it’s “all about implementation” and, not surprisingly, that the state’s funding for the tasks the county has to undertake is inadequate. Besides, he said, there is bureaucratic resistance locally to the reallocation of funds among agencies needed in order to fulfill new responsibilities. He is also critical of the rigidity of the implementation process laid out in the initiative, because it is difficult to adjust with experience. He says the process did not allow for a “sufficient road test,” and complains that the proponents are “too defensive to acknowledge the need to adjust.”

All of that said, Ridley-Thomas and LA County Board of Supervisors member Hilda Solis created two task forces, one to reach out to the large number of eligible offenders who might not know they can apply for reclassification and the other, composed of business, education, foundation, and nonprofit leaders as well as public officials, to develop a strategy to help ex-offenders get jobs and services. Ridley-Thomas points to improved mental services, with the health department taking on new duties that are making a difference. Other officials have pitched in, too. LA district attorney Jackie Lacey convened a task force to expand diversion from jail for the mentally ill, and LA city attorney Mike Feuer, having been handed responsibility for a significantly expanded docket of misdemeanor cases, reached out to city and county agencies to design new approaches to low-level crime.

As of the end of 2016, 519,000 people in LA County were eligible to have their felonies reclassified as misdemeanors, and county officials say it is hard to locate the people who could receive reclassification.³⁷ Another report said 198,000 felony convictions in the county were downgraded as of the end of 2014.³⁸ That report contained stories of the efforts public defenders made to find potential applicants, most likely because they do not know of their eligibility. One lawyer said she stays at it because “lopsided sentences inspire [her] to keep going. In one a man had been branded a felon for stealing bales of hay, in another, just a pillow.”

Meanwhile, the governor is continuing the decarceration process. As of late 2016 Brown had approved parole for about 2,300 lifers convicted of murder and about 450 lifers sentenced for lesser offenses, in contrast to a grand total of two people receiving such clemency during the entire time Governor Gray Davis was in office (1999–2003). The state also ordered parole hearings for inmates with long sentences for violent crimes committed before they were twenty-three years old, to consider whether their immaturity at the time supports their release.³⁹

A significant step occurred in the fall of 2016 when the governor joined a successful ballot measure, Proposition 57, submitted by Lenore Anderson and movie producer Scott Budnick and his organization, the Anti-Recidivism Coalition. The proposition grants early release to nonviolent felons who finish rehabilitative programs and demonstrate good behavior, abolishes statutory restrictions on “good time” credits for good behavior, and allows prisoners convicted of nonviolent offenses to be eligible for parole after serving the base term for their crime. It also allows judges instead of prosecutors to decide if a juvenile should be tried in adult court, with the burden on the prosecutor to prove that a youth should be transferred. The latter in particular will reduce substantially the number of juveniles who are sent to adult court.⁴⁰

The future of Prop 47 is a matter of high stakes. Despite the claims of increased crime stemming from the operation of Prop 47, the recidivism rate for people getting out of prison or jail due to Prop 47 as of the fall of 2015 was 5 percent, against the overall state average recidivism of 42 percent.⁴¹ Among those released after the softening of the “three strikes” law, only about 6 percent were returned to prison, and just 2 percent of lifers paroled committed new crimes.⁴² So the prospects are good.

Whether the recidivism rate will hold as the number of people benefiting from Prop 47 increases is a question, and of course the level of recidivism is not the only measure of success. Jobs, mental health and drug treatment services, affordable housing, high school graduation, and other parameters are part of decarceration. Mark Ridley-Thomas reports that one out of three people released under Prop 47 is homeless. A journalist wrote, “Two years after Prop 47 addicts walk free and have nowhere to go.”⁴³ The more people who are out on the street instead of in prison or jail because of Prop 47, the greater the risk there is of more crime if California does not follow up and undertake everything that decarceration requires.

Half a century ago we deinstitutionalized our mental health system, closing mental hospitals with the promise of replacing them with community-based services, but failed to fulfill the promise. If we fail similarly here, we could easily find ourselves opening the prisons again. A huge and highly visible pothole lurks on the road to decarceration: decarceration that does not address the nation’s job situation is not going to work out well. We already have an enormous gap for younger workers, and predictably it is young people of color who will be the hardest hit.

Looking beyond the impact of Prop 47, Lenore Anderson of Californians for Safety and Justice says, “The biggest opportunity we have is not just to end mass incarceration. We need to replace it with lifting communities up. I think we are in a moment where we can actually do that, and that becomes our platform for safety. We’re not just going to reduce mass incarceration. We’re going to clean up the legacy, too.”⁴⁴