Californians bypass their Legislature on sentencing policy

I received an email over the weekend from a friend in California asking my opinion about Proposition 5, a ballot initiative focused on drug treatment and prison diversion that could reduce the Golden State's inmate population by as much as 10%. While I agreed with her that the initiative and referendum process isn't a great way to pass laws and has caused California a lot of problems, I told her "I'd likely vote for it if I were there."

Regular readers know California faces an very immediate prison overcrowding crisis made even more pressing by an imminent federal contempt order for failing to build new prison hospitals. And I was impressed by recent comments from a former San Quentin warden that Prop 5 "may well be California's last chance to bring about a solution to the many, intertwined problems in our criminal justice system that cause overcrowding."

However, the truth is I really dislike the idea of statewide initiative and referenda, particularly on criminal justice topics which require more nuance for good statute-writing than you get from these millionaire funded ballot initiatives. Indeed, ever "tuffer" referenda pushed by dot.com dabblers and grandstanding pols are largely what got California into its prison overcrowding mess. To drive home that point, two competing initiatives on the same ballot, Prop 6 and Prop 9 would boost sentence lengths for certain crimes, reduce opportunities for parole and expand California's prison population. Here's how the New York Times described the three proposals:

One initiative, Proposition 5, would increase financing for drug rehabilitation programs and reduce penalties for some drug- and addiction-related crimes. Another, Proposition 6, would increase financing for law enforcement and increase penalties for drug- and gang-related offenses. And a third, Proposition 9, would expand victims’ roles in criminal and parole proceedings, prioritize restitution payments to victims and reduce the frequency of parole hearings for offenders.

I can't help but wish the California Legislature hadn't made such ballot initiatives necessary by abdicating its responsibility to manage the state's prison problem. We're lucky in Texas our Legislature has embraced the idea of treatment funding to avoid new prison building which, as the former San Quentin warden says, may be the only real option to stem the swelling tide of prisoners and red ink in the state corrections budget. In California, by contrast, partisan gridlock routinely grinds reforms to a halt.

For those interested in learning more about California's Prop 5, which has drawn strident opposition from the prison guards' union and high-profile pols, check out these op eds pro and con from the Los Angeles Times. A supporter writes:

Whatever else might be said about Proposition 5, it would be difficult to dispute that it would reduce prison overcrowding and save taxpayer money. The nonpartisan Legislative Analyst's Office (LAO) estimates that the measure would reduce the prison population by more than 18,000 inmates, or a bit more than 10% of the current population of 171,000. In addition, the LAO calculates that under Proposition 5, there will be 22,000 fewer parolees.

As a result, California taxpayers would save at least $2.5 billion, according to the LAO. To put that number in perspective, $2.5 billion would be enough to pay the salaries of 37,500 elementary school teachers or healthcare for 2 million California children.

This prison population reduction is sorely needed. California currently has too many nonviolent offenders behind bars, and too many nonviolent parolees are sent back to state prison for technical violations of parole -- very often a minor drug violation such as a positive urinalysis. With our prison system at 60,000-plus inmates over capacity, Proposition 5 will help ensure that scarce incarceration space is used for serious and violent offenders.

The ballooning prison population is quickly moving beyond a run-of-the-mill policy problem and becoming a true crisis for our state. Here is how serious the situation is: Just this Monday, a federal district court judge ordered that state officials cough up $250 million for prisoner healthcare by Nov. 5 or risk being held in contempt of court with possible fines of up to $3 million a day.

Frankly, given the dire nature of our overcrowding problem and the difficult choices the state faces, Proposition 5 might be worth considering even if the reduced prison population and taxpayer savings came with costs in the form of a slight decrease in effectiveness. But they don't. Proposition 5 would achieve its inmate reductions and tax savings without sacrificing efficiency. Indeed, Proposition 5 would improve our efforts to combat addiction and related crimes by offering a public-health solution (drug treatment) to a public-health problem (drug abuse).

Even opponents agree Prop 5 would reduce California's prison population. Los Angeles County DA Steve Cooley writes in a counter point:

There is no doubt that Proposition 5 would reduce prison overcrowding because, if approved, tens of thousands of criminals who truly belong behind bars would avoid incarceration. They would simply have to claim they have or appear to have a drug dependency or addiction to be back on the streets. ...

Proposition 5 would greatly expand the pool of felony criminals eligible for treatment in lieu of incarceration. It would eliminate both the threat of incarceration as a deterrent to criminal activity and the reality of incarceration for those who most deserve it.

So Californians basically must decide if they think people who commit addiction-related crimes "truly belong behind bars," to use the prosecutor's framing, or if the "threat of incarceration" provides a "deterrent to criminal activity" for low-level drug crimes. Those are worthy questions for debate.

In many ways, the proposal is also a referendum on whether the public thinks a prior, less ambitious initiative mandating drug courts and treatment instead of incarceration, Prop 36, was a boon or a bane: Prop 5 expands on the same programs and concepts.

Meanwhile, to the north in Oregon, voters tomorrow will consider two ballot initiatives of their own, both of which would boost criminal penalties and obligate the state to build new prisons. (That's more typical of initiative-generated crime policy than Prop 5.)

These west coast plebiscites are among the downballot races I'll be watching tomorrow night as the 2008 election season finally, mercifully comes to a close.

RELATED: Via Doc Berman, see also this NY Times piece on San Francisco's Prop K, which would forbid expending city resources to enforce prostitution statutes, effectively decriminalizing the oldest profession in the city by the bay:

Supporters of the measure say it is a long-overdue correction of a criminal approach toward prostitutes, which neither rehabilitates nor helps them, and often ignores their complaints of abuse.

“Basically, if you feel that you’re a criminal, it can be used against you,” said Carol Leigh, who says she has worked as a prostitute for 25 years and now works as an advocate for those who trade sex for money. “It’s a really serious situation, and ending this criminalization is the only solution I see to protect these other women working now.”

The language in Proposition K is far-reaching. It would forbid the city police from using any resources to investigate or prosecute people who engage in prostitution. It would also bar financing for a “first offender” program for prostitutes and their clients or for mandatory “re-education programs.”