Prop. 47 Implementation Differs Around State, ACLU Finds

It's been a year since California voters embraced Proposition 47, reducing low-level offenses like drug possession and petty crime from felonies to misdemeanors and allowing people to clear past felonies from their records.

Most of the discussion since then has centered around two narratives: Supporters point to the tens of thousands of people being given a second chance, the falling county jail and state prison populations, and the state's historically low crime rates. Opponents note spikes in crime in some communities, saying police are now forced to give tickets instead of arresting criminals for low-level crimes and questioning whether drug addicts will really get the help they need without the threat of jail time.

But one year after Prop. 47 took effect, a new report by the American Civil Liberties Union of California finds a more nuanced picture. Looking at hundreds of pages of public records from the state's 58 counties, the organization discovered wild variations in terms of policing, jail policies and rehabilitation opportunities for misdemeanor offenders -- and that there's still a lot of work left to be done to fulfill Prop. 47's promise.

Some local law enforcement officials have complained there’s no reason to take someone into custody for a misdemeanor and have let the number of arrests fall. But other counties are arresting far more low-level criminals than before Prop. 47 passed, the ACLU found.

While jail populations fell right after Prop. 47's passage with the immediate release of thousands of offenders, some counties are now packing their jails with far more misdemeanor offenders than before. Because of this, jail populations are on the rise again.

In addition, some counties are putting misdemeanor criminals on probation while others aren’t -- and, according to the report, the decisions about who to supervise all seem pretty arbitrary.

“Prop. 47 is the law, but it is not the new normal,” said Margaret Dooley-Sammuli, director of criminal justice and drug policy at the ACLU of California.

“Despite all the successes of the first year, local agencies are still deciding how they will respond to Prop. 47. Unfortunately, there is still some resistance among law enforcement. As California enters Prop. 47’s second year, local law enforcement, behavioral health departments and county governments need to work together to address societal issues that have long challenged our communities, including mental illness, substance use disorders and homelessness.”

The ACLU praises counties for their quick response to Prop. 47's passage, saying they are "to be commended for the speed with which they addressed resentencing," of people behind bars. It calls out some historically conservative counties, including Kern, Fresno and Placer, for quickly embracing creative strategies around drug treatment.

But the report notes that while thousands of people on probation and as many as 1 million with years-old felonies could still be eligible to have their records cleared, they have only two more years under the measure to do so.

The government needs to allocate more resources to resentencing efforts, the ACLU recommended, including outreach to let people know they may be eligible. And the state should simplify the process for cleaning up criminal records, the report states, including making it automatic.

The report pushes back on the narrative by some in law enforcement that Prop. 47 left them with no option but to ticket petty thieves, drug users and car burglars, noting people with misdemeanor charges are taking up more and more jail beds in some counties such as Riverside, where the number of inmates convicted of misdemeanors doubled from March 2014 to March 2015.

The inconsistencies extend beyond jail beds. It seems some sheriff's departments are prioritizing low-level arrests, while others are ignoring Prop. 47 crimes: They are up 77 percent in Fresno and down 10 percent in Los Angeles.

Representatives for the associations that represent district attorneys and sheriffs in California said those variations are not surprising: Crimes have always been treated differently around the state, largely based on local community priorities. Aaron McGuire of the State Sheriff's Association called some of the report's findings hypocritical.

"In a sense they are saying while we decriminalized drug possession, we should still be arresting and prosecuting people for drug possession," he said, noting that those actions require the same amount of taxpayer resources regardless of whether a person is charged with a misdemeanor or felony.

And Sean Hoffman of the District Attorney's Association said prosecutors and police agencies haven't been given the resources they need to make such a huge shift in policy succeed.

“I think the policy recommendations they outline in there highlight what we see as one of big flaws with Prop. 47, which is that none of the, or very little of the, infrastructure was in place and funded to support these individuals when we decide we are not going to deal with this as much as a criminal justice issue as we are social, substance abuse, mental health issue," he said.

The report says counties need to identify more funding to help people with mental health and drug treatment through existing sources, including health care money, and ensure prevention strategies don’t ignore people until they are charged with felonies.

"Until Prop. 47, counties largely focused on programs and services for people facing or convicted of felony offenses. Through Prop. 47, voters reduced several of those offenses to misdemeanors. They did not, however, intend for these individuals or offenses to be ignored," the report states. "The intent of Prop. 47 is to shift toward programs to connect people who commit these petty offenses to the services they need to prevent future offending, including mental health care, substance use disorder treatment and supportive housing."

The ACLU also believes that probation departments need to use scientific assessments to decide which misdemeanor offenders would benefit from supervision; and that police need more options than just handcuffs to help the drug addicted and mentally ill.

“We encourage policymakers and advocates to use the information in our report to start a conversation around how local governments and communities can work together to make the most of the opportunity before them,” said Dooley-Sammuli. “California is in the spotlight as other states consider enacting similar reforms, and the choices we make now will have repercussions not only for our communities here at home, but in the decisions being made across the country.”