Jerry Brown: Old sentencing law had ‘unintended consequences’
For much of last year, Gov. Jerry Brown and his advisers pored over measures that Brown could take to ease fixed-term sentencing standards he signed into law when he was governor before – and came to regret decades later.
“Determinate sentencing,” Brown said, had contributed to prison crowding and removed incentives for inmates to rehabilitate themselves. He told his advisers he wanted to restructure how the state awards credits for good behavior, giving inmates a greater chance of parole.
Before he settled on the sweeping prison initiative that he announced on Wednesday, two groups of activists were pressing Brown to support other changes. The first, which Brown rejected, sought to install an independent sentencing commission, an administration official said. The second, concerning juvenile justice, provided the platform for the proposal Brown announced this week.
Juvenile justice advocates had submitted their own, little-noticed initiative in December, seeking to undo provisions of a 2000 ballot measure allowing prosecutors rather than judges to decide when to try teenagers as adults.
After months of talks, Brown joined their effort, adding to their initiative his proposal to make certain nonviolent felons eligible for early parole and, possibly more significantly, to give the Department of Corrections and Rehabilitation authority to award credits for good behavior. Brown said inmates currently have little incentive to rehabilitate themselves while in prison.
Now voters are likely to decide whether they think Brown’s effort will better prepare prisoners to re-enter society or instead release more offenders to endanger the community.
The measure – the only ballot initiative Brown plans to propose this year – follows years of angst by the Democratic governor over fixed-term sentencing and a tide turning nationally against tough-on-crime policies of the 20th century. Forty states took action to ease their drug laws between 2009 and 2013, according to the Pew Research Center. President Barack Obama has made prison reform a priority of his final year in office, and Sen. Chuck Grassley, R-Iowa, is advancing a bipartisan effort to reduce mandatory minimum sentences for some crimes.
In California, voters in 2012 revised the state’s “three strikes” sentencing law to require that a third strike be a violent or serious felony. Two years later, they approved Proposition 47, reducing penalties for some drug and property crimes.
Brown’s proposal would reduce the significance of criminal enhancements that can add years to prison sentences, letting felons convicted of nonviolent offenses seek parole after serving only their base term.
“My sense is this is really close to his heart,” said Joan Petersilia, a criminologist and Stanford Law School professor Brown has previously consulted about criminal justice matters. “I think he feels responsible, given the determinate sentencing law that he signed. But I also think he has lived with this now for 40 years and really understands how the determinate sentencing had all of these unintended consequences that he’s now trying to reverse.”
Many law enforcement officials, while aware of Brown’s discussions with juvenile justice groups late last year, said they only learned within the last month that Brown was considering joining onto the measure and changing it to address adult prisoners, as well.
Mark Bonini, president of the Chief Probation Officers of California, said he did not know Brown planned to announce the initiative – or precisely what it might include – until 9:30 p.m. Tuesday.
In a series of private meetings with sheriffs, chiefs of police and probation officers at the Capitol, Brown and his advisers aired possible changes, most controversially to include violent offenders in the ranks of prisoners eligible for early release.
Amador County Chief Probation Officer Mark Bonini, president of the Chief Probation Officers of California, said he and his colleagues told Brown, “That’s just too much.”
The governor acknowledged this week that the idea was a “nonstarter.”
Bonini said he did not know Brown planned to announce the initiative – or precisely what it might include – until 9:30 p.m. Tuesday, when he was summoned to join Brown for a conference call with reporters the next day. Deacon Clyde Davis, a prison chaplain in Tehachapi, was asked to join the call even later, on Wednesday morning. Both men said they saw the initiative text for the first time that day.
“We were kind of just flying by the seat of our pants thinking that something’s going to happen, something’s going to happen, what’s it going to look like?” Bonini said.
We were kind of just flying by the seat of our pants thinking that something’s going to happen, something’s going to happen, what’s it going to look like?
Mark Bonini, president of the Chief Probation Officers of California
Adding onto the juvenile justice initiative, instead of filing a new one, will let Brown start collecting voter signatures sooner at this relatively late date in the election season. If the measure qualifies for the November ballot, as expected, voters could face a raft of public safety-related decisions, possibly involving marijuana, the death penalty, gun control and, now, early parole.
Many law enforcement officials blame increases in crime on the passage of Proposition 47 and are pledging to counter the initiative, appealing to voters’ concerns about upticks in crime. Yet they acknowledge difficulty raising money for the campaign.
“We’ve learned with Prop. 47 that we should have come out earlier, and harder and more organized to be able to get the money to be able to get that message out,” said Sacramento County Sheriff Scott Jones, a Republican who is running for Congress.
He called Brown’s initiative “terrible,” saying the state will only create more crime victims as it uses early-release to manage the size of its prison population.
Daniel Zingale, senior vice president of The California Endowment, said the initiative Brown proposed initiative stems from a “convergence” of Brown’s interest in adult sentencing reform and those of activists who first pushed Proposition 47 and then turned their attention to juvenile justice.
“This administration’s style is to reach out to people who know something and ask questions,’ said Zingale, whose foundation has given grants to some of the groups involved in the juvenile justice effort. “I know they’ve been turning over every stone and finding out as much as they can learn.”
The percentage of Californians who say violence and street crime in their communities is a problem has declined 7 percentage points from a year ago, according to a Public Policy Institute of California poll released Wednesday.
Still, half of adults say crime is either a big problem or somewhat of a problem. And public opinion on ballot measures related to law enforcement can swing quickly. In 2004, an effort to soften three strikes held a major lead in public opinion polls weeks before a television advertising campaign by then-Gov. Arnold Schwarzenegger and an infusion of money from Henry T. Nicholas III, the billionaire co-founder of Broadcom Corp., sank the initiative.
To assist in the effort, Nicholas flew Brown, who was then mayor of Oakland and opposed the measure, to Southern California to produce a radio ad in the garage studio of guitarist Ryan Shuck of the band Orgy.
“Remember that thing? Public opinion turned on a head, turned on a head,” said Mark DiCamillo, director of the Field Poll. “Emotional appeals where you raise fears usually have salience to the voters in the midst of a campaign.”
It’s not a slam dunk, certainly, for the governor.
Mark DiCamillo, director of the Field Poll
For the parole initiative this year, DiCamillo said, “It’s not a slam dunk, certainly, for the governor.”
The November election in a presidential year is likely to attract high turnout, benefiting Democratic politicians and their causes. Brown, who holds about $24 million in two campaign accounts, will likely be forced to use some of his money defending against a ballot measure threatening his controversial Delta water project. But when asked about financing his prison sentencing measure, Brown said he will do “whatever it takes to get this done.”
Richard Temple, a Republican political consultant, said Brown holds a special standing with the electorate as “not just some soft-on-crime guy,” but as a former state attorney general with “a track record that makes him credible on doing this.”
However, Temple said “there’s a different view on public safety right now” with “a lot of local crime uncertainty or uncomfortableness around the state.”
He said, “The pendulum will swing back. This is just a matter of time.”
Chula Vista police Chief David Bejarano, president of the California Police Chiefs Association, said Brown’s initiative “does provide, probably, a better opportunity for an offender to succeed once they’ve completed their term.”
He said that outcome would benefit public safety but remains hesitant.
“Our concern is – and there probably is a need for reform – we just have to be careful we don’t swing the pendulum too far one way or the other,” he said. “We have to be real careful we don’t compromise public safety, we don’t go too far.”
Statewide, about 7,000 nonviolent prisoners would be eligible for parole consideration under the measure, according to Brown administration estimates. But most of those prisoners – 5,700 – already are eligible for parole consideration under a federal court order.
Brown’s proposal for credits for good behavior could have broader reach. The Brown administration said the governor envisions a credit system that could apply to a broader set of prisoners than the limited number he is seeking to make eligible for early parole.
The expansiveness of that system would be determined not through the initiative, but through regulations written after the election.