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California Just Became the First State to Defelonize Drug Use

The Golden State has been an archetype of the United States' prison boom since the war on drugs began, but now it's joining the mass incarceration reform wave.
November 5, 2014, 3:33pm
San Quentin State Prison in California. Photo via Flickr user telmo32

On Tuesday, Californians voted on ballot proposals surrounding issues like water supply, health insurance, and state budget reform. But none of them garnered the same level of national interest as Proposition 47, the criminal justice reform initiative that promised to thin out the state's saturated prisons by reducing six classifications of nonviolent drug and theft-related crimes from felonies to misdemeanors.


The measure passed, and California will now become the fir​st state to defelonize nearly all accounts of drug possession with the intent of personal use.

That California is now leading the nation in this regard is extraordinary. Along with Texas, the Golden State has been an archetype of the United States' prison boom since the war on drugs began escalating incarceration rates decades ago. Prison populations in 2010 were 735 percent what they were in 1969, while the state's residential population only grew by 192 percent across the same period.

Even so, Prop 47's success comes as little surprise to those who have been following the state's prison woes closely. Over the ​past decade, California has been under pressure from the federal government to shrink its inmate population and alleviate unconstitutional prison conditions. The state tri​ed mitigating the issue by exporting nearly 8,500 inmates to penitentiaries in Oklahoma, Arizona, and Mississippi, but even after this transfer, local prison populations continued to hover between 120 percent and 150 percent of their intended capacity.

In 2012, more than 68 percent of voters agreed to water down California's contentious "Three Strikes Law," which put anyone with three felonies, violent or nonviolent, in prison for life. This indicated a major shift in the public conscience; it dismantled a foundation of the state's tough-on-crime mantra that was approved by nearly three-quarters of voters during Bill Clinton's presidency in 1994.


These moves have already​ started sifting nonviolent offenders out of state prisons, but Prop 47 will raise depopulation efforts to a new level. Along with defelonizing most counts of drug possession, it gives at least 10,000 inmates without a history of violent or sexual crime the potential to challenge their sentencing. By increasing the felony threshold of non-violent acts like shoplifting and purchasing stolen goods to $950, it more than doubles California's previous limit for imprisonable theft crimes.

The proposal's success augurs a massive shift in our understanding of how to heal, not bandage, crime and prison issues. It will create a Safe Neighborhoods and Schools Fund, which plans to take the estimated $750 million to $1.25 billion saved from incarceration reform over the next five years and inv​est it in K-12 schools and convict rehabilitation programs. Tackling prison glut while maintaining public safety doesn't mean simply revisiting law structures--it means also pushing for boosts in the capacity of tertiary education.

On a national level, Prop 47 is a watershed moment because it adds major weight to a push for criminal justice reform that's already seen​ 30 states restructure their laws since 2007. Michigan, Alabama, Tennessee and Utah may soon join California and raise that number to 35; task forces in those states are currently looking into local prison issues and are likely to try out reform initiatives as early as 2015.


In other words: more than half of the country with the highest incarceration rate in the world is finally recognizing the need to rethink what it means to be "criminal."

"Governments are starting to ask, 'Who is in prison, and should they be there?'" says Alison Lawrence, a policy specialist at the National Conference of State Legislatures' Criminal Justice Program. She's been closely following prison reform across the country, and is documenting its development in comprehensive reports over at the NCSL's webs​ite.

"If they find that some people shouldn't be, they change their criminal code and lower the penalties for low level offenses," Lawrence adds. "If they're not lowering the penalties, they're authorizing community sentences and giving judges more discretion."

This process is a derivative of what's known as "justice reinvestment." Initiatives like the Prop 47 campaign in California take prison and corrections data, and use it as the bedrock of incremental reforms that aim to cut incarceration costs while boosting public safety. Texas, somewhat surprisingly given its reputation as a national backwater, was one of the first to pursue it. The state invested $240 million in expanding its rehabilitation services for convicts and increasing parole and probation capacities for local law enforcement in 2007. As a result, Texas saved $432 million from 2008 to 2009, and in 2012 its prison populations were the lowest they'd been in five years.


While distinguishing between dangerous and non-dangerous criminals is one facet of the national reform movement, another is making sure state policies towards non-violent crimes like theft are aligned with the inflating cost of goods. Some of these states' theft laws were ratified more than 20 or 30 years ago, and as a result, many of the monetary thresholds for felony charges are disconnected from today's commodity price indices.

Most of the 30 states that have enacted justice reinvestment or similar initiatives are showing signs of success, or at least progress. Based on data from​ the past few years, Vermont's prison population has declined by 5 percent since 2009, and the state is expected to save $54 million by 2018. South Carolina has seen a 2 percent drop in the number of parolees or probationers being sent back to prison for committing new crimes. Hawaii, which has some of the highest cost-per-prisoner rates in the country due to its pricey land, plans to save nearly $130 million over the next five years by changing its retainment laws for parolees and low-risk offenders who have completed their sentences.

Others, like Kansas and Oklahoma, have had to go back to the drawing board since moving for reform in 2007 and 2012, respectively. But in light of what all these states have done before, how will California do? Can Prop 47 live up to its promise?

"It's hard to compare any state to California because of its size and realignment policy," Lawrence says, referring to a 2011 act that started putting some non-violent, non-sexual felons into county jails instead of prisons. "But overall, states have experienced tremendous success. In most cases, offenders that are going on to probation instead of prison are successfully completing their probation. They aren't committing new crimes, so public safety, which is tantamount to justice reinvestment, is being achieved."


Going forward, Lawrence notes, states in the beginning stages of pursuing justice reinvestment should pay attention to the unique nature of what's been done in Georgia and Colorado. Georgia, which has the fourth-most populated prisons behind Florida and ahead of New York, installed a special oversight council along with its reform legislation in 2012. Instead of just monitoring numbers and devising new laws when statistics don't meet the state's goals, the council has the power to suggest and implement auxiliary approaches on the fly.

Colorado approved a law that made reevaluating its theft-related felony thresholds a mandatory, recurring thing. Every three years, the state analyzes its laws in context of the price of goods and makes adjustments if the two don't sync up. Because of this, last year, the state doubled its felony threshold, bumping it from $500 to $1000, acc​ording to Denver criminal attorney Kevin Churchill.

While this burst of state activity shows that the lock-them-up mentality in the United States is starting to wear down, plenty still needs to be done to nullify the status quo. As VICE rep​orted in September, federal prison populations are slowly shrinking, but even states with justice reinvestment initiatives like Texas have started seeing their numbers creep upward again.

Regardless, Prop 47 has struck a major blow at America's prison problem. An overhaul of California's incarceration culture will not only have major statistical significance in terms of nationwide crime data, but should resonate in the halls of power.

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