Prop. 57 is a step toward reforming state’s broken criminal justice sentencing system

Proposition 57 would increase parole and good-behavior opportunities for felons convicted of nonviolent crimes. And it allows judges to decide whether to try certain juveniles as adults.
Proposition 57 would increase parole and good-behavior opportunities for felons convicted of nonviolent crimes. And it allows judges to decide whether to try certain juveniles as adults. The Associated Press

In an ideal world, California would adopt wholesale reform of the criminal justice system.

Instead, we have a crazy patchwork quilt of measures, like Proposition 36, the criminal justice realignment of 2011, and Proposition 47 of 2014.

Some are blunt instruments, like Proposition 47, which reduced some serious felonies to misdemeanors and reduced the incentive for some offenders to participate in drug treatment when their drug offenses were reduced from felonies to misdemeanors.

But no one – especially the California District Attorneys Association or Republican legislators – is advancing wholesale sentencing reform, despite proven bipartisan efforts in other states.

And so we have Proposition 57, Gov. Jerry Brown’s latest effort to help adjust an unbalanced criminal justice system. Proposition 57 is one step – but not a giant leap – toward reforming California’s broken criminal justice sentencing system.

But any change, however incremental, brings with it critics. And in his op-ed in The Bee, former Gov. Pete Wilson is offering his critique of his rival’s idea. Like many so-called law-and-order leaders, Wilson claims the three-strikes sentencing law and other laws he championed are responsible for the historic downturn in crime rates in California.

In fact, Wilson and other proponents of three strikes are responsible for billions of dollars in prison costs that have been poorly spent. And he is making a similar mistake by opposing Proposition 57.

Misrepresenting Proposition 57, Wilson writes that “a prisoner now serving extended sentences for egregious or multiple crimes will be released after serving only the base term for his most recent nonviolent crime, without consideration of preceding violent felonies.”

Be clear: Nothing in Proposition 57 guarantees that any offender will be released after serving less than his full sentence. At its core, the proposition makes a class of offenders eligible for parole. Historically, the rate of release has fluctuated, but parole boards have not been especially permissive in granting early release, especially when dealing with violent offenders.

Supporters of three strikes and other sentence-enhancement laws claim these measures caused the downturn in crime rates that began in the mid-1990s. A study prepared by then-Attorney General Dan Lungren’s office supposedly showed that crime rates in California were on the rise until passage of three strikes and then turned downward after its passage.

But that claim has been rebutted by serious empirical studies. Most notably, the Lungren study conflated three years of crime data. Examining the data year-by-year revealed that the decline began before three strikes’ passage and continued at the same rate after its passage.

The decline in crime was more dramatic than that in some states in the mid-’90s and beyond. But it reflected a nationwide downturn. Some states had sharper declines, without putting in place exceedingly expensive measures like three strikes and other enhancement provisions.

California’s multiple sentence enhancements result in extremely long sentences, warehousing some offenders past their likely criminal careers. Geriatric prisoners are unlikely to continue in their crime careers and are expensive to maintain in prison. Money spent on prisons is unavailable for education and many other programs, including a greater law enforcement presence in high-crime areas.

Multiple studies demonstrate that the certainty of punishment – the chance of getting arrested and probability of some jail time or other restraint on freedom – is far more important than the severity of punishment if our overall goal is deterring crime.

So I would urge you to vote for Proposition 57, unless you believe that our dysfunctional Legislature will come up with wholesale reform of our criminal sentencing scheme any time this century.

Michael Vitiello is a professor at University of the Pacific’s McGeorge School of Law. Contact him at