By Rosalie Winn, ACLR Blog Editor

On November 4, 2014, California voters passed Proposition 47, reclassifying certain low-level drug and theft crimes from felonies to misdemeanors. The passage of the ballot initiative occurs against the backdrop of decades of legislation and litigation over California’s criminal sentencing and overcrowded prison system. This post surveys the history of sentencing and prison reform in the state and analyzes the prospective impact of Proposition 47 on individual offenders and the prison system.

California’s modern sentencing and prison landscape can largely be traced to the passage of the state’s “Three Strikes” criminal sentencing law in 1994. Intended to incapacitate and deter repeat offenders, the law required sentencing enhancements for a person convicted of a felony who had previously been convicted of one or more serious or violent crimes. These sentencing enhancements dramatically increased prison time for certain offenders, with so-called Third Strikers (offenders who are convicted of a third felony after two previous violent or serious convictions) receiving twenty-five years to life in prison.

Courts have generally upheld the legality of the Three Strikes law, with the Supreme Court holding in Ewing v. California that Three Strikes was not a violation of the Eighth Amendment’s prohibition on cruel and unusual punishment.<sup>1</sup> The Court justified the defendant’s sentence of twenty-five years to life for stealing golf clubs from a country club with reference to the “State’s public safety interest in incapacitating and deterring recidivist felons.”<sup>2</sup>

In 2004, a decade after the implementation of Three Strikes, approximately 43,000 offenders (twenty-six percent of the total California prison population) were serving time under the law. Roughly fifty-six percent of those Strikers were serving time based on convictions for non-violent and non-serious offenses. The Three Strikes law was estimated to cost the state roughly half a billion dollars each year in additional expenses.

A few years later, it had become clear that California’s prison overcrowding had become unsustainable. In Brown v. Plata, the Supreme Court ordered the state to reduce the number of prisoners by up to 37,000 inmates, finding serious and ongoing constitutional violations resulting from a lack of basic medical and mental health care.<sup>3</sup> The state’s prison system had been operating at roughly 200% capacity for over a decade, resulting in “[n]eedless suffering and death.”<sup>4</sup>

Governor Jerry Brown introduced a plan in 2011 to meet federal court orders. Termed “realignment”, the plan shifted non-violent, non-serious, non-sex offender felons from state prisons to county jails. While California’s prison population initially dropped sharply, from 162,400 to 133,000 inmates, it is now again on the rise and expected to grow to 147,000 in state custody by 2019.

In 2012, over sixty-nine percent of Californians voted to pass Proposition 36, revising Three Strikes to shorten the sentences of prisoners serving life terms for non-serious, non-violent crimes. Over 3,000 inmates are eligible for release under Proposition 36 and over 1,000 prisoners had been released by August 2013.

Proposition 47 is the latest development in California sentencing reform. The law shifts the classification of certain crimes from felonies to misdemeanors. In contrast to felony sentences, which can result in any amount of time spent in a state prison or a county jail, a misdemeanor carries a maximum sentence of one year in jail. Proposition 47 will thus result in a further shift of offenders away from California’s state prisons.

Proposition 47 focuses on the reclassification of certain non-violent, non-serious felonies. Specifically, the law requires misdemeanor sentencing for all illegal drug possession for personal use and misdemeanor sentencing for all petty theft, receiving stolen property, and forging/writing bad checks when the amount involved is less than $950. Those given misdemeanor sentences under Proposition 47 will serve their time in jail, not state prison. The law allows for felony sentencing for those offenses if the defendant has previously been convicted of certain violent or serious crimes including murder, rape, and/ or child molestation. Proposition 47 applies retroactively to offenders currently serving sentences on the reclassified crimes, who must be resentenced unless a court finds they pose an unreasonable public safety risk.

The California Legislative Analyst, the state’s nonpartisan fiscal and policy advisor, estimates that approximately 40,000 offenders are convicted annually of the reclassified crimes. The Legislative Analyst expects that Proposition 47 will reduce the state prison population both by making fewer future offenders eligible for state prison sentences and by resentencing current offenders in state prison, several thousand of whom will be released. As a result of Proposition 47, the Legislative Analyst estimates net criminal justice system savings of several hundred million dollars annually. Any savings as a result of Proposition 47 will be placed in a new fund, the Safe Neighborhood and Schools Fund, created to assist primary schools, crime victims, and mental health and drug treatment programs.

Proposition 47 builds on California’s earlier sentencing changes to help shift non-violent, non-serious offenders out of the state’s overburdened prisons. Proposition 47 is not a silver bullet that will fix all the underlying woes of the California prison system, although it will have concrete impacts for the thousands of offenders annually who would previously have been sentenced to felonies and will now receive misdemeanor charges. Proposition 47 has the potential to free up significant space in jails and prisons—between 10,000-30,000 beds. If the high range of these estimates is met, California will be close to the maximum target mandated by federal courts of 110,000 inmates in state prisons. Even if these optimistic targets are achieved, challenges with California’s prisons are likely to persist, as prisons are likely to continue operating at least at 137.5% capacity.