Prop. 47: What de-felonizing some crimes means for SLO County

With the approval of Proposition 47, officials at every level of San Luis Obispo County’s criminal justice system — like those in other counties throughout California — are scrambling to determine what the new rules mean for existing treatment programs and public safety.

On Nov. 4, voters made California the first state in the nation to de-felonize simple drug possession and several other low-level, nonviolent offenses. The victory has been interpreted as a mandate to move away from tough-on-crime policies and toward prevention and rehabilitation.

The measure passed amid an ongoing statewide effort to reduce the prison population, which has flooded county jails with thousands of low-level felons but also funneled money to local jurisdictions for treatment and rehabilitation services.

Proponents of the Safe Neighborhoods and Schools Act, a historic initiative to relieve the state’s overburdened criminal justice system, say savings could fund anti-truancy and post-release treatment programs, and keep people with simple substance abuse problems out of jail.

But law enforcement officials in San Luis Obispo County and throughout the state warn the new sentencing guidelines could weaken the deterrent factor for those crimes, negate treatment requirements for drug addicts and in the very near future release thousands of former felons onto the streets.

What Proposition 47 does

Proposition 47 passed with a strong 59 percent approval statewide, according to the secretary of state. San Luis Obispo voters similarly passed the measure 61 percent to 39 percent.

Under the new law, drug crimes that were prosecuted as felonies — such as cocaine and heroin possession — are now misdemeanors, regardless of amount, so long as there is no proven intent to sell.

Some property crimes previously known as “wobblers” — or charges that could be prosecuted as misdemeanors or felonies based on a defendant’s history or severity of the crime — will now only be prosecuted as misdemeanors.

Misdemeanors are punishable by a maximum of one year in jail.

Offenses of grand theft, shoplifting, writing bad checks, check forgery and receiving stolen property — as long as each offense represents a value no more than $950 — are now misdemeanors.

All simple drug-possession cases will be prosecuted as misdemeanors with the exception of marijuana, which is an infraction.

The new guidelines went into effect at 12 a.m. Nov. 5, and are retroactive.

According to a report by the independent Legislative Analyst’s Office, savings to the state and local county governments could reach the low hundreds of millions of dollars annually. Those savings, the report reads, could hypothetically be used for truancy and dropout prevention, drug treatment and victims services.

According to The Associated Press, some 4,000 inmates across the state may be eligible for resentencing or early release.

‘Bad policy’

San Luis Obispo County law enforcement officials are not pleased.

“There’s nothing safe about the Safe Neighborhoods Act. It’s bad policy for the state,” said San Luis Obispo County District Attorney Dan Dow.

Dow’s main objections center around prosecutors’ and judges’ previous leeway in deciding sentences for many crimes on a case-by-case basis based on a defendant’s criminal history. Now, he said, that leeway is gone.

“The court was the check,” Dow said. “The hammer is now a flick on the wrist.”

Topping the list, Dow said, is the change in drug sentencing. With a misdemeanor conviction, many first offenders and others will not be required to complete a court-order treatment program and others will not benefit from new programs offered at the County Jail.

Stealing a gun, as long as it’s worth less than $950, is no longer a felony, Dow said, although using it during a crime will likely earn a defendant a felony conviction. He said that message contradicts the majority of Californians’ call for strict gun regulation.

Also, possession of substances such as date rape drugs is given the same weight as meth or cocaine, Dow said, which could lead to an increase in sex crimes.

From a patrol perspective, Sheriff Ian Parkinson said the new law will widen the legal “revolving door” where low-level offenders are back on the streets shortly after committing a crime because officials are required to cite and release misdemeanor offenders.

Asked whether the initiative’s passage means voters want less emphasis on incarceration, Dow and Parkinson said voters were duped and noted that the pro-initiative campaign received far more funding than law enforcement could ever raise to fight it.

According to the California secretary of state, supporters raised more than $7 million in 2014, mostly from the American Civil Liberties Union and labor organizations, compared to about $470,000 raised by the opposition.

'A really great thing'

San Luis Obispo public defender Patricia Ashbaugh sees the law as an opportunity for some offenders to break free from the criminal justice system.

“I think it’s a very positive thing in California,” Ashbaugh said. “People convicted of felonies are denied employment, denied housing. This is an opportunity for them to clean up their record, and I think that’s a really great thing.”

In response to criticism that the new sentencing guidelines will inspire people to commit crimes, Ashbaugh said it’s unrealistic to think drug offenders differentiate between misdemeanors or felonies when purchasing drugs. She added that misdemeanors still carry a one-year maximum sentence in County Jail.

“It doesn’t eliminate the consequences,” she said. “But I think the bottom line is people have a better chance at success if they are not a convicted felon.”

In the week following the election, the Public Defender’s Office was receiving an average of 15 calls an hour from inmates at the County Jail whose sentences could be affected, as well as from attorneys and family members.

She said that her office has received about 200 requests from local inmates to review their cases, a time-consuming task that includes contacting the inmate, their former attorneys and any other party of interest. A paralegal has been temporarily hired to handle the extra workload and prepare individual petitions for resentencing, Ashbaugh said, with priority given to inmates who have been incarcerated the longest.

Ashbaugh said no such case from the Public Defender’s Office had yet to reach a courtroom, but as of Wednesday, the office was preparing to file its first batch of petitions.

Judicial backup

Once those petitions are filed, it will have an immediate effect on operations at the San Luis Obispo County Superior Courthouse.

Court CEO Susan Matherly recently reorganized the weekly courtroom calendar by type of offense to ease overcrowded courtrooms and hearing delays. Resentencing cases could overburden misdemeanor courts in the short-term, she said.

“But otherwise, new cases would be heard in court anyhow,” Matherly said. “So we don’t know at this point how much it will affect us in the long run.”

‘Raising the lid?’

Drug and alcohol addiction treatment providers across the state are also pondering what the new guidelines mean for their clients and services.

The National Association of Drug Courts Professionals came out in opposition to the measure, agreeing with law enforcement that it removes the legal incentive for seriously addicted offenders to seek treatment.

“Drug Courts use the leverage of the criminal justice system to keep people engaged in treatment long enough to have lasting effect,” the association said in a September memo to member agencies. “Under Proposition 47, the longest sentence addicted offenders could receive is six months — far short of what is necessary to provide appropriate treatment.”

Clark Guest, program supervisor for the county Health Agency’s drug and alcohol services who oversees the county’s court-mandated drug programs, said he didn’t think the new sentences will affect the number of people struggling with addiction, but it could affect the severity of their addiction when they do pursue treatment.

He compared serious addiction to the contents of a jar; the jar may be nearly full before a lid prevents overflowing.

“It doesn’t change addiction itself. People are still going to be suffering. But I think that lid has been raised,” Guest said. “Our job is to make adjustments to our programs to best serve the clients.”

Will of the voters

When asked whether passage of Proposition 47 reveals a weakening of support for hard-nosed policies such as the controversial Three Strikes Law, District Attorney Dow said the criminal justice system is constantly evolving.

“The pendulum has swung multiple times,” Dow said. “Now things are swinging back.”

Ashbaugh said it shows voters do not want to pay to keep low-level criminals in jail, and that a direct vote by the people was the only chance for real reform, given the political clout enjoyed by the state’s law enforcement associations.

“That’s the only way it got through,” Ashbaugh said. “The voters showed they were willing to vote for something no legislator would.”

PROPOSITION 47

On Nov. 5, the following crimes were reduced to misdemeanors:

• Grand theft of property worth $950 or less
• Shoplifting of property worth $950 or less
• Receiving stolen property of $950 or less
• Writing bad checks each totaling $950 or less
• Check forgery each totaling $950 or less
• Possession of a controlled substance, for personal use, for any amount or substance. Possession for sales remains a felony. Possession of marijuana remains an infraction.

The nonpartisan Legislative Analyst projected hundreds of millions of dollars would be saved annually.

• 65 percent would go to mental health and drug treatment programs
• 25 percent to school truancy and dropout prevention programs
• 10 percent to help crime victims.

This story was originally published November 19, 2014 at 9:04 PM with the headline "Prop. 47: What de-felonizing some crimes means for SLO County."