‘Walking out of jail’: Prop 47 frees felons with downgraded charges

LOS ANGELES — Within days of Californians’ overwhelming approval of an initiative that knocks low-level felonies down to misdemeanors, life behind bars is ending for hundreds of felons and felony suspects.

Public defenders throughout the state kicked into overtime, working even on Veterans Day to handle thousands of cases of people awaiting verdicts or already doing time.

More than 4,700 state prison inmates are eligible for resentencing and possible release under the new law, according to the California Department of Corrections and Rehabilitation. Thousands more serving time in county jails or awaiting trial could end up with lighter sentences and walk free.

Under Proposition 47, California is the first state to reduce a wide array of nonviolent crimes from felonies to misdemeanors — including drug possession, theft, possession of stolen goods, forgery, shoplifting and check or credit card fraud involving less than $950. Defendants with histories of violence or sex offenses are not eligible for more lenient charges.

“After the election, those crimes are no longer felonies,” said Allen Hopper, criminal justice and drug policy director for the American Civil Liberties Union of California. The national ACLU contributed $3.5 million in support of Prop 47.

“In many cases, prosecutors are just dismissing the charges or working out a plea. People incarcerated waiting for trial are walking out of jail with no conviction,” Hopper said.

Thirteen other states classify simple drug possession as a misdemeanor; California is the first to reduce such charges across the board.

The proposition was backed by an interesting array of conservatives (Republican former House Speaker Newt Gingrich) and liberals (rapper Jay-Z). It was also strongly opposed — mostly by law enforcement, prosecutors and other groups arguing that easing penalties would increase crime. But in a state that’s still struggling to comply with a 2011 Supreme Court ruling to reduce prison overcrowding, releasing low-level offenders made sense to 59 percent of voters.

The move is a remarkable reversal. California led the nation at the ballot box 20 years ago for the opposite reason. That’s when voters approved the harsh three-strikes law for defendants who had two or more prior convictions; if subsequently convicted of any felony, they faced a sentence of 25 years to life in prison, even if the third offense was nonviolent. In 2012 voters eased the punishment. They approved amending the law to apply the stiffest sentencing only to serious or violent felons. Those who were sentenced under the old law could petition the court for lighter sentences.

“And now here’s California reversing itself again,” said Jody David Armour, a law professor at the University of Southern California and expert on gun control and racial profiling. “In some ways, I feel heartened that the electorate itself has taken this issue to heart.”

He worries, however, that the change may have the unintended consequence of resulting in harsher treatment of those who don’t qualify for lighter sentences. “It can demonize those who don’t qualify,” he said.

With Prop 47, the California Legislative Analyst’s Office estimates “state and county criminal justice savings potentially in the high hundreds of millions of dollars annually.” The money the state saves from not having to incarcerate these offenders will fund school truancy and dropout prevention, mental health and substance abuse treatment, victim services and other programs designed to keep offenders out of jail and prison.

Supporters herald the change as an important step toward reforming the criminal justice system by spending less on incarceration and more on prevention and rehabilitation.

“It’s the first time that criminal justice reform of this nature has been endorsed by public referendum,” said Will Matthews of the ACLU. It shows that the public is awakening to the fact that “simply locking up as many people as we can is not the smartest or most fiscally prudent way of approaching crime and punishment,” he said.

At the ACLU, phone calls from advocacy organizations are coming in from across the country, which may portend changes coast to coast. Even in California, “Prop 47 is only the beginning of sentencing reform,” Hopper said. The hope is that the voter mandate will launch a comprehensive review of the state’s penal and sentencing codes. “This is what voters want.” 

The Los Angeles County Sheriff’s Department is going through the process of identifying who may qualify among those awaiting trial.

“We do not have an exact number of pretrial felons who are being held solely on one of the crimes impacted by Prop 47,” said department spokeswoman Nicole Nishida. “A large percentage of inmates have multiple charges, so this will take time to evaluate.”

The change is good news for defendants but a nightmare for city attorneys, who are inheriting thousands of cases that, when they were felonies, would have been handled by district attorneys. Now that many have been downgraded to misdemeanors, they land in city attorneys’ laps.

The day after the election, Los Angeles City Attorney Mike Feuer asked the City Council for more than half a million dollars to hire 15 more lawyers and assistants to handle a projected 13,500 new cases a year. But until the money comes in, the city attorney’s office struck a deal with district attorneys.

“The D.A. will continue to handle the caseload with misdemeanors,” said Rob Wilcox, director of community engagement and outreach at the Los Angeles City Attorney’s office. “They’re already staffed up, and they would just now prosecute them as misdemeanors until Jan. 31, 2015.”

Public defenders, who supported Prop 47, are now dealing with thousands of cases that are pending or must be refiled for resentencing. In Contra Costa County, public defenders have been working nights and weekends to review cases of prisoners serving time in state prisons and county jails. Every Friday until the docket is cleared, they will dedicate court time to those cases.

On Nov. 7, the first Friday after the initiative passed, there were 100 cases on the calendar. They got through 80. “They were either awaiting trial or sentenced to local custody.” said Robin Lipetzky, a public defender for the county. “Thirty-five walked out of jail.”

Others will soon, including a 47-year-old man who was sentenced to six years in state prison in Solano County for possession of a small amount of cocaine. He has served four years. “He was ordered released last Friday,” Lipetzky said. Another who served more than a year of a five-year sentence for possession of a small amount of methamphetamine was also ordered released.

In Alameda County, a few dozen inmates have been released in less than a week, said Brian Bloom, an assistant public defender. “Within a couple of weeks, we hope to bring in all the folks serving sentences on felonies that are now misdemeanors,” he said. “That’s probably between 100 and 150.”

How is the office handling the workload? “We’re just doing what public defenders always do,” he said. “Most of us were in on Veterans Day.”