Update Tuesday, Nov. 8: Proposition 57 passed with strong support from voters.
Original post Friday, Oct. 7:
When Gov. Jerry Brown signed Senate Bill 42 in 1976, he said it would provide "certain, clear punishment for crime."
The measure passed the Legislature with little controversy. It created a determinate sentencing structure in California, scrapping most open-ended prison terms and instead giving inmates a set release date. It was the first major shift toward a more prescribed approach to punishment in California, one that lawmakers and voters embraced wholeheartedly in the decades that followed.
Now, 40 years later, Brown believes that signing the law was a mistake -- and he's asking voters to approve a measure that would move California back toward the system it abandoned.
Proposition 57 could allow many inmates to serve shorter prison terms than the ones handed down in court when they were sentenced -- if the state parole board judges them suitable for release. The governor believes the change will make prisons and the public safer by giving inmates an incentive to improve themselves while they are incarcerated.
"I think if anything, this is the greatest step we could take for public safety in California," he said, noting that nearly all inmates are eventually released from prison. "We want to make sure when they get out, they've gone through a real program of education and rehabilitation and to make that happen, you can't force them, but you can incentivize them by the possibility of earlier parole."
Prosecutors disagree and are campaigning vociferously against Proposition 57.
"Our hands will be tied," said Ventura County District Attorney Greg Totten. "What a judge imposes will no longer be significant -- and state bureaucrats, who are not subject to elections, who are not accountable to the public, will be making decisions about who does and who does not get released."
"It's dangerous for California," added Sacramento County District Attorney Anne Marie Schubert.
SB 42 and a 'Hog Wild' Legislature
Before Brown signed the determinate sentencing law, criminal offenders were sentenced to broad, unspecified prison terms. A panel appointed by the governor, then called the Adult Authority, had immense discretion to decide how long an inmate should stayed locked up.
The system in place was supposed to allow the release of inmates when they were deemed rehabilitated and ready to re-enter society. But critics -- mostly civil liberties groups -- thought the policy gave too much power to the law enforcement-dominated Adult Authority and resulted in disproportionately long sentences for people of color.
Brown said he listened to those critics when he decided to sign SB 42. As he signed the bill in 1976, he told reporters that "the concept of rehabilitation is seriously changed in our law by allowing the concept of a determinate sentence for a crime."
He misjudged the law's impacts, Brown said recently.
"I thought it would give certainty, it would be more focused, people would know what their punishment is, and that would act as a great deterrent," he said. "Of course, I didn't really think about the fact that when you tell somebody they get out at this date, between then and the time they arrive in prison they have no incentive to take classes, to avoid the gangs, to really scrupulously follow the rules."
Brown has spent much of his third and fourth terms as governor working to fix California's troubled prison system, which has been under federal court oversight for a decade because conditions inside were ruled to be so crowded and chaotic they violated the Constitution's ban on cruel and unusual punishment. Brown believes Proposition 57 may be the final major policy change needed to get the state out from under court control.
Brown doesn't blame SB 42 alone for the prison overcrowding. Brown also lays responsibility at the feet of lawmakers and voters, who approved dozens of "tough on crime" sentencing laws in the years that followed. Chief among those laws are "criminal enhancements" -- additional time tacked on to prison sentences because of an offender's criminal history or the nature of their crime. For example, a five-year sentence could grow to 20 years if the offender is a member of a gang or had a gun in their possession.
"First the Legislature goes hog wild -- I'd say criminal legislation on steroids for 30 years," the governor said. "And then at the end of that the Supreme Court says prison conditions are terrible, it's overcrowded, people are committing suicide, they have unconstitutional medical care, you've got to take out thousands and thousands of people from prison," he said. "We want to do that in a rational way, and that's what Proposition 57 attempts to do."
Proposition 57 wouldn't do away with sentence enhancements, but it would let the state's parole board decide to release an inmate before he or she serves the time tacked on by enhancements -- if an offender is deemed ready to leave prison. That provision would apply only to inmates serving crimes considered nonviolent under state law.
Brown estimates it would apply to around 1,100 inmates a year; prosecutors say the number is closer to 16,000.
The governor notes that inmates are already being released under this process -- in 2014, a federal court ordered the state to start releasing some prisoners after they served their primary sentence, excluding enhancements. The ballot measure would expand that pool of prisoners to anyone convicted of a "nonviolent" crime under state law.
That's one of the major problems with Proposition 57, said Schubert, the Sacramento County district attorney. She said the definition of violent crimes in the measure, which includes murder, rape, robbery and kidnapping but not offenses like assault with a deadly weapon, sexual battery or hostage-taking, is too narrow and that potentially dangerous felons could qualify for release.
"When I go out to the community and I say, 'How many people in this room think domestic violence is a violent crime?' They all raise their hands. 'How many people think assault with a deadly weapon is a violent crime?' They all raise their hands," she said. "Those are all nonviolent under the penal code."
Brown calls those claims a "complete red herring," noting that some of the state's most notorious inmates -- including Charles Manson -- were convicted before the determinate-sentencing law and could be paroled today. He said the list of violent crimes was created by a ballot measure supported by the District Attorneys Association and that prosecutors have wide discretion when they file charges against defendants.
Most important, Brown argued, the parole board will take into account the facts of each case and the offender's behavior while in prison when weighing whether to release them -- which is why Manson remains behind bars.
Parole commissioners making these judgments now will have a better sense of what serves public safety than a court did years or decades ago, he argued.
"I'm just saying that what they decide on the day of sentencing, that is not all perfect. It's not omniscient, and over time -- five, eight, 10, 15, 20 years -- why not have a group of wise people saying, 'You know what? I think this inmate's ready for release'?" he said. "I want the parole board to look into the eyes of that parolee, listen where it's appropriate to the victims or the district attorney, and make an informed judgment."
But Schubert is worried the parole board won't have a chance to look in the eyes of an inmate or hear from victims and prosecutors directly. She said many of the inmates approved for early release in recent years because of the federal court order never saw a parole commissioner -- their files were reviewed by deputy commissioners, who made a decision without ever talking to the inmate, prosecutors or victims.
"There's nothing in the governor's initiative that says it's a parole board" reviewing the cases, Schubert said. "What we already know from the governor's early releases is that it's not a hearing, it's a letter. We get to write a letter. That's it."
Brown said he understands that concern and will work to address it if Proposition 57 passes.
"That's something to be decided and maybe we'll take the more serious inmates and maybe put them through live parole," he said. "I understand if it's just administrative, on paper, that's different than, as I said, looking into their eyes. ... I'll try to get the best, safest, most humanly effective process as possible."
'Cleansing the Augean Stables'
A second provision of Proposition 57 could have even wider-ranging implications. It would allow the state prisons department to revamp the system for awarding "good time credits" to inmates who participate in programs such as drug rehabilitation or schooling. Currently, there's a patchwork of laws and regulations governing the credits.
"I challenge you to find in California someone that can explain perfectly the credit system. I don't think they exist," Brown said. "You can get credit 15 percent of the time a third of the time, 20 percent of the time, half the time, day for day -- but it keeps changing. You can get this much credit for this crime, but then in 1990 it was this, in 1995 it was that."
The governor said Proposition 57 would "cleanse the Augean stables" and allow the Department of Corrections and Rehabilitation to develop a new system through a public regulatory process that would include prosecutors, defense attorneys, law enforcement and any other member of the public who wants to weigh in.
Curtis Roberts is one of the inmates barred from earning credits -- even though he's participated in programs during his entire 22 years in state prison. He's the type of prisoner supporters of Proposition 57 cite when arguing that California's criminal justice system has become too rigid.
He's serving a 50-year-to-life sentence for stealing $40 out of a cash register and burglarizing his in-laws' vacation cabin. In an interview at San Quentin Prison, Roberts said he was addicted to cocaine at the time and committed the crimes to feed his drug habit. He pleaded guilty, he said, to avoid dragging his now ex-wife through a trial.
But Roberts was sentenced in 1995, less than a year after California voters approved the state's Three Strikes Law, which required a 25-year-to-life sentence for anyone convicted of a third felony. Roberts had previous robbery convictions and received two 25-to-life sentences for his 1995 convictions.
He's not eligible for parole until 2044. He'd be 82 years old by then and says the sentence sometimes overwhelms him.
"That's why I wanted to commit suicide. It's 50 years," he said. "The hardest days for me in here are this: When a guy that has committed a murder and he goes home, doing less time than me. I internalize that and it's very, very difficult for me. I've never shot a gun. I've never physically put my hands on anybody. I've caused harm. I've hurt people. Not 50 years' worth."
Voters passed Three Strikes in the aftermath of 12-year-old Polly Klaas' kidnapping and murder in Sonoma County. The law aimed to guarantee long sentences for repeat criminals like her killer, Richard Allen Davis, who had been in and out of prison all his life. But the law has also snared many lesser offenders, including drug addicts like Roberts. He's not eligible for a revision to Three Strikes approved by voters in 2012 because his felonies are considered serious and violent even though no one was physically harmed.
"They sentenced me as if I was Richard Allen Davis and that I killed Polly Klaas," Roberts said. "That was the sentence they gave me. But that is not true. I am not Richard Allen Davis. I did not kill Polly Klaas. I didn't molest nobody. The purpose from this point on is punishment for Curtis. Punishment," Roberts said.
Proposition 57 opponents, however, worry that inmates won't be truly rehabilitated because the prisons department won't have the necessary resources.
"We need meaningful rehabilitation," said Schubert. "I am all for someone earning their way out prison, I am all for them having hope they can get out of prison ... (but) you have to have true rehabilitation."
Brown said he plans to put more money into prison programs. And Amador County's chief probation officer, Mark Bonini, says even with the incentive of early release, some inmates won't choose to participate. Bonini heads the Chief Probation Officers of California, which has endorsed Proposition 57.
"Just because it's there doesn't mean offenders will take advantage," Bonini said. "You could still have somebody, if Prop. 57 passes, do same amount of time," he said. "It's just a matter of trying to incentivize them to take advantage of programs, because ultimately if they do and you have it set up and it's funded, you will have a better product on the back side when they (are released)."
Bonini said his group endorsed the measure because probation chiefs believe it will be easier for offenders to "seamlessly" re-enter society if they already are getting help in prison.
One Victim's Mixed Feelings
Victims of violent crimes and those with loved ones in prison have mixed feelings about changing the system.
Crystal, who didn't want her last name used for this story, is one of those people. She is a domestic violence survivor who said she was dumbstruck when Schubert's office told her they believe her abuser could be released before his full 25-year sentence under Proposition 57.
That man, James Coker, was convicted of a harrowing series of assaults on Crystal and other women.
"He's hit me with baseball bats, burned my face with lighters and torches, put cigarettes out in my mouth. I just can't even recall some of the stuff he's done. He's broken one of the mason glass jar things over my head where the bottom of it was sticking out of my head," she said.
But Crystal also has a brother in prison who could benefit from Proposition 57. She says she knows many people -- including Coker -- who would have been better served by more effective rehabilitation programs behind bars.
At San Quentin, Roberts dreams of getting out and reconnecting with his daughter, who was 5 when he went to prison. He said he has to balance his hope with the reality of his sentence.
"I have worked very, very hard on myself to correct some of the past behaviors, my drug use. I haven't used for 22 years," he said.
"I understand in my mind, 50 years. I'm 54 years old, so that means I'll be 82, so that means really I'll never get out. At 82 years old, what am I going to get out to, or for? I believe better of society. I believe better of you. You wouldn't let this happen. I believe better."
This story is part of our California Counts collaboration with four California public media organizations to cover the 2016 election. The partners include KPCC in Los Angeles, KQED in San Francisco, Capital Public Radio in Sacramento and KPBS in San Diego.