"Will California Lead The Way On Prison Reform?"
For much of the twentieth century, if you committed a serious crime in California, a judge would sentence you to an ambiguous-sounding prison term—say, five years to life. While you were serving your sentence, a parole board would review your record and decide how long the rest of the sentence should be, based on factors such as your behavior and your participation in prison rehabilitation programs. The idea was to take the specifics of the crime into account in the original sentencing, and then to reward those who seemed to be taking steps toward genuine rehabilitation.
But in the sixties and seventies, liberal lawmakers, influenced by the civil-rights movement, started to observe that the racial and class biases of parole-board members were influencing their decisions. At the same time, conservatives, troubled by rising crime, began to argue that parole boards had too much power, which was leading to lenient sentencing decisions. In 1976, under pressure from both sides, Governor Jerry Brown, a moderate Democrat, signed a law mandating “determinate” sentences in California: from then on, judges would choose from a set of firm sentences for each crime, stripping power from fickle and possibly racist parole boards. “It is the most far-reaching criminal-justice reform in the last fifty years,” Brown said at the time. The reform was far-reaching, but perhaps not in the way that Brown had expected. California’s prison population began to balloon—the determinate sentences, set by the state legislature, turned out to be longer, on average, than the indeterminate ones.

This trend was compounded by new federal laws that were passed in the aftermath of California’s (and of one passed by New York earlier in the seventies, which enacted strict penalties for selling drugs). Among them was the 1994 Violent Crime Control and Law Enforcement Act, signed by Bill Clinton, which included the notorious “Three Strikes, You’re Out” provision, for dealing with repeat offenders. Many states enacted similar tough-on-crime measures. In 1978, state prisons held a hundred and twenty-three people for each hundred thousand U.S. residents; by 2007, that figure had risen to four hundred and sixty-one. The effects were disproportionately felt by low-income men of color. As Adam Gopnik wrote, in a 2012 article about the prison boom, “For most privileged, professional people, the experience of confinement is a mere brush, encountered after a kid’s arrest, say. For a great many poor people in America, particularly poor black men, prison is a destination that braids through an ordinary life, much as high school and college do for rich white ones.”
A great deal has happened over the past several decades to precipitate a change in public sentiment about prisons. In the late seventies, voters and politicians on the left were preoccupied with civil rights, and, on the right, with crime. But over the following decades, liberals became more focussed on the systems that perpetuate economic inequality—subpar schools, low access to healthcare, and, yes, high incarceration rates—and conservatives began to concentrate on government spending. When the recession of the late aughts devastated state budgets, liberal and conservative concerns converged: this time, liberals sought to lower imprisonment rates in service of social justice and in order to free up resources for education and health programs, while conservatives sought the same in service of reduced spending. A prison exodus began not only in California and other blue states but also in conservative states such as Texas.
By the time Brown was inaugurated as governor for a third time, in 2011, California’s prison population had already fallen, but it was largely because his Republican predecessor, Arnold Schwarzenegger, had transferred thousands of prisoners to out-of-state facilities. A few months after Brown became governor, the U.S. Supreme Court ruled that California’s prisons were so overcrowded as to constitute cruel and unusual punishment. Writing for the majority, Justice Anthony Kennedy called the situation “exceptional,” describing gymnasiums that housed hundreds of inmates and toilets shared by upward of fifty people.
Later that year, the state began implementing a law, signed by Brown, mandating that people convicted of certain low-level crimes be punished at the county level—by being put in county jails or on probation overseen by county officers, instead of into the state system of prison and parole. The plan was known as “realignment.” With that move, Brown came to the fore of efforts to reverse prison growth, decades after he’d played a key role in its expansion. It wasn’t a sudden shift, however. In 2003, while Brown was serving as mayor of Oakland, he had publicly repented about the determinate-sentencing decision,calling it an “abysmal failure” and describing California’s prisons as “postgraduate schools of crime.”
Brown’s policies are seen as largely responsible for lowering the total number of inmates in the state’s prisons by about a fifth since 2011, to about a hundred and seventeen thousand people. Still, the law hasn’t accomplished as much as Brown and other advocates had hoped it would. California prisons still house far more people than they were built for. In 2011, the Supreme Court mandated that the state heed a call from a three-judge court to bring its prison population down to close to a hundred and ten thousand people; the Supreme Court gave the state until 2013. But, now, the panel has been forced to give California an extension, to 2016, to get there.
On Tuesday, California voters went further still, passing a ballot measure,Proposition 47, that will turn certain felonies that often result in state-prison sentences into misdemeanors, which are typically punished by lower-level sentences, such as time in county jail. The measure passed by a wide margin, with fifty-eight per cent in favor and forty-two per cent opposed. The development has been widely celebrated in criminal-justice circles and seen as a continuation of Californians’ repudiation of the tough-on-crime age. “There’s a shift in the national consciousness,” Allen Hopper, the criminal-justice and drug-policy director for the American Civil Liberties Union of California, toldthe Sacramento Bee. “I think that ‘smart on crime’ sort of captures the mood of the nation now.”
Though this may be true, the outcome of Prop. 47’s passage is uncertain. The measure’s opponents had argued, for example, that the muted deterrence effect would lead to more crimes. This could well happen. But Hayley Munguia, of FiveThirtyEight.com, looked on Thursday at similar laws that have recently passed in other states—Arkansas, Georgia, Kentucky, and Texas—and found that, in three of the four states, crime rates had decreased afterward. Since California started enacting reforms, in 2011, its rate of violent crimes has fallen, too, from four hundred and thirty-nine per hundred thousand residents, in 2010, to under four hundred, in 2013. (This continued a general decline since 1992, when the rate hit a record of eleven hundred.)
Also uncertain is whether Prop. 47 will actually keep people out of prison, let alone lower California’s prison population enough to the level mandated by the judges. The nonpartisan Legislative Analyst’s Office, which advises the state legislature, estimated before the measure’s passage that it would reduce the state prison population by “several thousand” inmates, but it didn’t offer a more specific figure.
None of this is to suggest that California is making poor decisions—only that the outcomes won’t be known for quite a while. That’s to be expected with big legislative changes meant to reverse decades’ worth of public policy. Discussing the realignment law, Brown recently made a remark that was eerily similar to his 1976 comment about determinate sentencing, calling the new law “the biggest change, probably, in our prison system in the last forty years.” Both times, Brown was prescient in recognizing that an important transformation was afoot; the hope is that this time it’s for the better.