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In his final State of the State speech, Governor Jerry Brown made a subtle, quietly impassioned case to the people of California to address crime and public safety rationally and with humanity. Brown referred to an “unprecedented” 2011 decision by the United States Supreme Court that catalogued the shocking abuse and mistreatment that resulted from California’s incarceration boom in the last 40 years. This horror not only affected the prisoners but also correctional officers who supervised these conditions that Justice Anthony Kennedy said were akin to “torture or lingering death.” This decision should be required reading for every legislator, prosecutor, and voter.
After referring to the exponential growth of California’s prison system, Governor Brown made a plea to the legislature, although his request applies just as much to voters who have legislated increased punishment at the ballot box:
“Take time to understand how our system of crime and punishment has evolved, how other states and countries have devised their prison systems and what changes might we now make. I urge that instead of enacting new laws because of horrible crimes and lurid headlines, you consider the overall system and what it might need and what truly protects public safety. . .[Our prison system] is all out of sight, but profoundly important because most inmates will be returning to their communities and we want them to be as reformed and rehabilitated as possible.”
In simple words, Brown was summarizing the problem that we had created and called us to our more rational selves for the necessary changes. Don’t be guided by fear (horrible crimes and lurid headlines); don’t look at one criminal act and react with hysteria (consider the whole); look at our recent past of inhumane, overcrowded prisons (take time to understand how our system of crime and punishment has evolved); and consider better ways to “truly” protect public safety (look at successful examples and assess changes we can make). And finally, don’t forget punishment is not an end: rehabilitation and restoring communities is the goal.
This was a remarkable counterpoise to others who shout at us, hoping to return us to our “tough on crime” past. They claim that they are protecting us from immigrants who are rapists and murderers. They call for walls, as if prison walls were a model worth emulating. These powerful, angry people threaten incarceration for those who violate drug laws, even old laws that no longer apply. These people encourage police brutality and assure us that they are concerned about “our” safety.
As much as we may mock these fear mongering tactics, we must be mindful that California has gone down this “tough on crime” path with abandon in recent history. Governor Brown was reminding us of the economic and human costs of our past decisions. In the face of those who peddle fear, whether they rise again in California or Washington, we must respond to crime with sanity.
In his speech, Brown made an amazing factual assertion about crime in California: the number of reported felonies in California today are lower than in 1970. Not the rate of felonies in proportion to population, but the actual number. In this era of “fake facts,” it needs to be said that this is true, according to the California Department of Justice. And consider this: in 1970, California had a population of 19.97 million people; in 2017, California had a population of 39.6 million people. Our population has almost doubled, while the number of felonies — violent and property crimes — has decreased.
Proponents of mass incarceration argue that the drop in crime can be attributed to increased and lengthier sentencing. But correlation does not equal causation. A 2005 study by the California Legislative Analyst’s Office reported that the crime rate in California dropped in the first ten years of the Three Strikes law, from 1994 to 2004; the analysis questioned whether that drop was a direct result of the increase in sentencing, either because more criminals were off the street or because harsh sentencing laws were acting as a deterrent. The answer was neither. Crime rates had dropped prior to the advent of Three Strikes, in approximately 1990, and they dropped nationwide during the Three Strikes period. The crime drop in other states was obviously unrelated to California’s harsh sentencing laws. Moreover, crime rates within California dropped at roughly equal rates, irrespective of a county’s use of three strikes sentencing. Because prosecutors have such incredible power in charging crimes and enhancements, there were great disparities in the use of three strikes between counties. Prosecutors in counties including Ventura, Contra Costa, San Francisco, and Alameda used three strikes sparingly, seemingly reserving its use for truly serious crimes. However, prosecutors in other counties, including Kern, Los Angeles, Riverside, and San Diego, charged defendants with strike enhancements with great frequency. If increased punishment was leading to a lower crime rate, one would expect to see a disparate drop in crime rates from county to county, depending on the prosecutor’s office use of the Three Strikes law. That did not happen. Instead, the overall crime rate in California dropped across counties from 1994 to 2004, both in very punitive counties and in less punitive counties.
Spurred by the economic and human costs of incarceration, California voters and its leaders began to chart a different course. In 2011, the legislature enacted a law that ensured that those convicted of less serious crimes served their time in county jails. Although this move was forced in part by the Supreme Court’s decision, it had the salutary effect of keeping offenders in their own communities, close to their families, and able to access services there. In 2012, voters reformed the Three Strikes law, so that only when the third felony was serious or violent could a person receive a 25 to life sentence. In 2014, voters enacted Proposition 47, which reduced certain drug and property crimes to misdemeanors. Newly enacted laws have ended juvenile life without parole and given increased chance for parole for youthful offenders, those convicted of crimes when they were under the age of 26.
These recent changes are ushering in an era of criminal justice reform. Notably, throughout this period of time, crime rates have remained historically low. In January 2018, the Center on Juvenile and Criminal Justice released a report showing that urban crime rates in California’s 73 cities with populations of 100,000 people or more have remained stable (and historically low) from 2010 through 2017. Just as increased incarceration did not lead to declining crime rates, the move towards decarceration did not lead to increasing crime rates. This study also revealed that crime rates are highly localized. For example, while auto break-ins have risen in San Francisco, property crimes have declined significantly in other jurisdictions. As crimes are localized, solutions, whether through better policing — including investigations that lead to the tops of crime rings, and not simply to the young person on the street — or more opportunities offered to those at greater risk of engaging in criminal behavior, must be localized.
Although the mentioned initiatives and other legislation have garnered media spotlight, one of the most profound statement about California’s changed mindset toward criminal justice came in October 2018, when the state changed the purpose of sentencing itself. Previously, the Penal Code stated, “the purpose of sentencing is punishment.” Now, it is declared, “the purpose of sentencing is public safety, achieved through punishment, rehabilitation, and restorative justice.” These simple words mark a tectonic shift in attitude.
We know what punishment is. As for rehabilitation for the offender, California is slowly, but surely committing resources to prisons so that programs of education, training, and counseling are provided. But what do we need to do to implement a system that restores justice to the whole community? Restorative justice principles give a voice to survivors to speak and for offenders to be held accountable. However, the third party necessary in this effort is the community. While the offender is being called to account and urged to rehabilitate, the community must also engage in reflection and accounting. How did the community contribute to the offense? Were community resources allocated to meet the offender’s needs prior to the crime? What will the community do to offer opportunities to the offender after incarceration? If the community cannot engage in this reflection, we are unfairly letting ourselves off the hook and assessing blame only outward. If we are to move to what Governor Brown referred to as “true public safety,” none of us should be afraid to hold ourselves accountable. We all have a role in the rehabilitation of our communities.
Kate Chatfield is the Policy Director of Re:store Justice and an adjunct professor at the University of San Francisco School of Law Criminal and Juvenile Justice Clinic.