Over the past two years, as California has shifted responsibility for tens of thousands of convicted felons from state prisons to county jails and probation rolls, law enforcement officials across the state have stepped up the debate on the merits of punishment vs. rehabilitation – and where the balance lies between public safety and second chances.
In Sacramento County, as residents prepare to elect a new district attorney for the first time in 20 years, the issue has emerged as a key point of division among the candidates vying to replace five-term incumbent Jan Scully.
Deputy Attorney General Maggy Krell has taken a strong position in support of the new sentencing system, known as realignment, saying it presents California with an opportunity to make a clean break from what’s been an “incarceration-first” mentality. Krell said realignment gives local officials leeway to shift the emphasis toward rehabilitating the lower-level offenders who have been cycling in and out of state prisons at recidivism rates that still exceed 60 percent.
Anne Marie Schubert, a Sacramento County deputy district attorney, takes a more skeptical view. Schubert said she is concerned about a component of the law that allows offenders with a history of serious and dangerous crimes to be released from prison and returned to county probation supervision instead of to state parole oversight. The change, she said, makes it tougher to return some criminals with violent histories to custody and to keep them there for more than a few months if they violate the terms of their release.
Todd Leras, a third candidate in the race, is a former prosecutor and public defender. Leras shares Krell’s view that realignment offers a way out of a correctional quagmire that has seen the federal courts order California to cut its prison population by about a third from its 2009 numbers, to 110,000, to achieve constitutional levels of medical and mental health care.
The three candidates are running to replace Scully as the county’s top law enforcement officer. Scully, who was first elected in 1994, announced last year she would not be seeking a sixth term. She has endorsed Schubert in the race.
As a practical matter, a district attorney’s policies on realignment are constricted by the law, which spells out where sentences will be served: county jail or state prison. District attorneys, however, have a significant say in making offers to defendants to split their sentences, a key aspect of realignment that gives counties leeway in dividing jail terms between custody and probation time. DAs also can advocate for – or oppose – sentencing alternatives that can be central to many rehabilitation programs. That includes Sacramento County’s experiment with re-entry court, which allows judges to suspend sentences if defendants agree to enroll in rehabilitation programs.
Beyond that, a prosecutor’s take on realignment represents an expression of his or her philosophical view of the justice system: What should the measure be between punishment and rehabilitation – how much of which, and for whom?
“The question of realignment should prompt a major discussion in the community about how you allocate and balance resources and use the position of the DA’s Office in talking about crime and alternative punishments and proper types of incarceration and programs,” said Phil Giarrizzo, a Sacramento political consultant who often works with Democratic and labor groups.
Ray McNally, a Republican political strategist, said recent data that show crime going up in conjunction with realignment made the law a focal point as voters assess the three candidates.
“I think it will be an issue for the simple reason that crime is ticking up, property crimes are ticking up and the county is wrestling with how best to apportion its resources,” McNally said. “There’s pressure to release more people out onto the street, there’s a lack of programs for them, and I think crime is going to become a bigger and bigger issue, especially crime that people believe is resulting from realignment.”
Crime and consequences
Enacted in October 2011, California’s realignment law has resulted in a massive statewide shift of offenders – generally those whose most recent convictions involved lesser crimes such as drug sales or theft – out of state prison and into county jail and off parole and into probation. As of the end of January, Sacramento’s “realigned” population stood at 2,502, with more than 500 of them in custody.
The shift has saved the state more than $1.5 billion in general-fund corrections spending this year compared to when the prisons were overflowing with inmates five years ago.
At the same time, the Public Policy Institute of California reported in December that there are about 18,000 people on the streets who otherwise would be in prison or jail. The institute estimated that each of them has committed one to two property crimes a year, which helped account for a 7.6 percent increase in such offenses from 2011 to 2012. It found no evidence to link California’s 3.4 percent uptick in violent crimes over those same two years to realignment.
Opponents of the plan contend the law has created a public safety problem. The Sacramento-based Criminal Justice Legal Foundation has cited news stories from around the state about lower-level offenders being sent to county jails instead of prisons, serving shorter terms and then committing more serious crimes when they otherwise would have been in custody.
Supporters of realignment acknowledge the crime increases, but note that the uptick took place before the state began to funnel money to the counties to pay for added jail space, more probation officers and more rehabilitation programs. That funding now exceeds $1 billion annually. With thousands of inmates being forced out of custody, backers of the law say the counties have no choice but to come up with rehabilitation alternatives.
As the law has unfolded in Sacramento, the District Attorney’s Office under Scully has voiced support for the preventive aspects of realignment, mainly in new educational and vocational programs that have become available in the jail. But it has expressed reservations about losing leverage in imposing consequences on lawbreakers. Scully has supported a funding split that has given nearly four-fifths of the $51 million now coming into the county from the state to sheriff’s custody programs, at the expense of rehabilitation offerings managed by the Probation Department or allocated to community-based organizations.
Schubert, 50, who is assigned to the DA’s homicide team, has endorsed the office’s approach toward realignment. She had been a long-time supervisor in the sexual assault and child abuse unit, and says the potential for some past sex offenders to get a break under realignment has her concerned.
She said she supports the aspect of realignment that has helped fund services such as day reporting centers where probationers attend rehabilitation programs. But she voiced concern about how the law allows offenders with serious or violent pasts to be released from prison into probation supervision – instead of state parole oversight – if their most recent conviction is considered lower-level.
Besides Scully and Sheriff Scott Jones, Schubert is supported by the unions that represent Sacramento police officers and sheriff’s deputies who deal with the released offenders out on the streets.
“We have less and less consequences for individuals than we used to have,” Schubert said. “I believe that we should offer people a hand to become productive and provide them with the skills they need to re-enter society. But we also have to have consequences for the lack of compliance with those programs. So when you have sex offenders and gangsters that are out in our community now that otherwise wouldn’t be, you need to have consequences when they violate.”
It’s “misleading,” Schubert said, to paint realignment as only for less serious offenders. She said her experience and relationships with law enforcement leaders would be a huge factor in making sure Sacramento gets realignment right.
Schubert cited Leslie Marie McCulley as an example of a dangerous offender who was out on the streets because of realignment. McCulley had been sentenced to jail time in Butte County instead of state prison despite a history of drug offenses and a misdemeanor conviction for being an accessory to an assault on a police officer. She only recently had been released from jail when she helped instigate a high-speed chase through Land Park in 2012 that ended with her boyfriend shooting a police dog and trying to kill an officer. Her boyfriend was killed when the officer returned fire. McCulley was sentenced last November to 31 years to life in prison for aiding and abetting the attempted murder of a police officer.
‘Some new ideas’
Krell, 35, has been focused most recently on prosecuting human trafficking cases in her job with the state attorney general’s office. Her job, she said, has taken her to other counties and given her a fresher outlook at what those jurisdictions are doing to make realignment work. She said she views realignment as “a solution, if you will, to a massive over-incarceration crisis, where we had so many people in our prisons that the courts literally told us we had to make a drastic change.”
Krell has been endorsed by the Sacramento County Probation Officers Association, which represents a key law enforcement group that monitors realigned inmates coming out of both the jails and prisons.
“I think realignment is the reality and it’s not getting repealed – it’s not changing,” Krell said. “And I think we have to do our best to make it work, and I think there are a lot of ways we can make it work. I think it gives us the opportunity to be creative at the local level, to run things more efficiently, to have more community supervision-type solutions for lower-level offenders.”
Krell said that as a strong supporter of the concept, she would be better positioned to make sure the policy gets a chance to work.
“If you look back historically, Scully was elected in 1994, the year that ‘three strikes’ was passed, and it was very much the tough on crime, lock them up, lock them up as long as you can era,” Krell said. “My opponent has done over 20 years in that office during that era.
“I think the attitude there hasn’t changed despite the fact that realignment is the new reality. I think that the adjustment for the DA’s Office has been difficult. I think an outside voice like mine, and the benefit of seeing how other counties are tackling the same problems, could really offer a fresh vision, some new ideas and a smarter, better approach.”
Leras, 50, worked in the Sacramento County DA’s Office before becoming an assistant federal prosecutor for the U.S. attorney. His views on realignment are similar to those of Krell.
He said the law rightfully forces local criminal justice systems to handle their own offenders instead of shuffling them off to the state, and that he sees only a “grudging compliance” by the DA’s Office with the spirit and letter of realignment, a “clenched-teeth acceptance.”
He said he believes the rehabilitation component of realignment can take a real chunk out of the state’s recidivism rate that still exceeds 60 percent. His endorsement list includes several Sacramento defense lawyers as well as civil rights and labor activists.
“We knew this day was coming,” Leras said. “We had this big (prison) building boom in the ’80s. That’s ended. We don’t have the funds for it and there’s not the political will to build those prisons, so the beds are filled up.
“And so you can no longer say we’re going to err on the side of sending them to state prison. Now, you really have to prioritize, and I think that’s a good thing.”