What Will Jerry Brown's Departure Mean for Criminal Justice in California?

When Gov. Jerry Brown was sworn in seven years ago, he inherited a prison system that by most accounts was at a breaking point.

Years of “tough on crime” laws had packed state lockups to the brim. Federal judges told California leaders they needed to reduce the prison population by 40,000 inmates, or else the court would start releasing prisoners.

So one of Brown’s first big moves as governor was a proposal to massively change how the state dealt with nonviolent offenders: Assembly Bill 109 shifted their sentences from state prison to county jails, and let them report to county probation departments rather than state parole officers.

Supporters, including state Sen. Mark Leno, said the change — dubbed “criminal justice realignment” — would let the state save money, reduce crowding and tackle its dismal recidivism rate, which saw 70 percent of offenders return to prison within three years of release.

Leno, a San Francisco Democrat, carried the 663-page realignment bill through the Senate, a proposal that Republicans opposed.

“I think we can all acknowledge we have a failed very expensive system currently,” Leno told lawmakers during a March 2011 debate. “For example, if someone has a drug or alcohol problem, currently when they fail parole, we send them back to state prison at a cost of about $50,000 a year. And guess what — we’re not dealing with the problem. Locals, with the funding we will be providing, will be able to invest in a variety of different programs, to get to the core of the problem.”

The success of realignment is still being debated. But it’s clear that the bill was just the beginning of a series of sweeping criminal justice reforms California would embrace over Brown’s two terms in office.

Some of the most far-reaching reforms came at the ballot box.

Voters lowered most drug possession offenses from felonies to misdemeanors, softened the three strikes law, legalized marijuana and embraced sweeping parole changes pushed by Brown.

In the Capitol, Brown signed dozens of laws reshaping criminal sentences, and vetoed bills that would have created new crimes or increased sentences.

So what will a new governor mean for California and Brown’s criminal justice legacy?

A lot would change if a Republican won.

Businessman John Cox and state Assemblyman Travis Allen are both vowing to repeal most of Brown’s signature criminal justice reforms and others backed by voters, including Proposition 47, the 2014 ballot measure that made some theft and most drug possession charges misdemeanors. That measure has helped reduce the populations in county jails, and allowed thousands of people with past relevant felonies to petition the courts to have their records cleared. Any changes would need to be approved by voters.

Critics blame Proposition 47 for the slight increase in property crimes seen statewide since 2014 and the large spikes in some big cities.

“I’d take a very different approach than Jerry Brown’s,” Cox said in a statement to KQED. “On day one as governor I would act to end the sanctuary state law, I will also advocate for full repeal of Prop.47 and AB 109 to remove the criminal element plaguing our streets.”

Allen went even further, promising to “reverse the soft-on-crime laws of Jerry Brown and the California Democrats,” including Brown’s Proposition 57, which made it easier for people who participate in rehabilitation programs to win their parole from prison.

Allen also vowed to return to a tougher three strikes law; voters embraced changes to that law in 2012. And, he called for repealing some of the state’s tough gun control measures.

“Liberal laws like AB 109 and Propositions 47 and 57 have released thousands of criminals and sex offenders from jails and prisons and into our neighborhoods, feeding the explosion of homeless encampments, drug users and criminals in our neighborhoods,” Allen said.

Of course, Republicans make up only about one-quarter of the electorate in California, making it far more likely that the next governor will be a Democrat.

If that’s the case, don’t expect a big shift on criminal justice, said Jessica Levinson, a law professor at Loyola Marymount in Los Angeles.

“What you see (among Democrats) is kind of a race to be the most reform-minded criminal justice proponent,” she said. “You hear a lot of talk from all of them about basically how we need to take preventative measures.”

Levinson said she doesn’t see much daylight among the three leading Democrats — Lt. Gov. Gavin Newsom, state Treasurer John Chiang and former Los Angeles Mayor Antonio Villaraigosa.

But there are clearly some differences among the candidates.

Villaraigosa, for example, has tried to strike a middle path, saying he supports reforms and opposes the death penalty. In a statement to KQED, Villaraigosa noted that he long opposed the state’s draconian three strikes law, which voters approved in 1994.

“It has taken our country too long to recognize that the war on drugs and the politics of being tough on crime led to our country’s crisis of mass incarceration,” Villaraigosa said. “Governor Brown and our state have taken important steps to reform our criminal justice system but much remains to be done. I will continue to work on the path of reforming our criminal justice system. As I have done throughout my career, I will continue to work on reducing incarceration levels, capital punishment and creating economic opportunities that address the root causes of crime and desperation.”

But Villaraigosa also has been critical of realignment and of a push to move away from California’s money bail system.

Those positions helped him win the backing of several law enforcement groups, including the Police Officers Research Association of California (PORAC), that have been among the most vocal critics of Brown’s criminal justice agenda. PORAC and others are backing a ballot measure to roll back some of the changes included in Propositions 47 and 57, an initiative those close to the governor see as an attack on his criminal justice accomplishments.

PORAC President Brian Marvel noted that Villaraigosa was once speaker of the state Assembly.

“Which shows that he has the ability to build coalitions, which I think are important. Coalition-building and getting support from a wide variety of interest groups is not easy,” said Marvel, adding that rank-and-file police groups represented by PORAC were often left out of discussions around criminal justice policy in recent years. His group believes Villaraigosa would include them.

Staking out a more progressive position is Newsom. He has embraced criminal justice reforms, pushing gun control and marijuana legalization at the ballot box and speaking out in favor of bail reform, which lawmakers are currently considering.

In a statement to KQED, Newsom said he would go even further than Brown, and took a swipe at Villaraigosa, who has accepted money from people in the bail industry.

“I think the governor should be commended for his leadership fighting for sentencing reform, and, unlike my opponents, I was a vocal proponent for Brown’s efforts at the ballot box,” he said. “But we can’t stop there. I was proud to lead efforts to roll back the racist war on drugs, and unlike Antonio Villaraigosa, I believe strongly that our next governor should lead efforts to eliminate the discriminatory cash bail system and take on the private prison industrial complex. Bail bondsmen and the for-profit prison industry should have no place in California’s future. ”

Brown hasn’t weighed in on the governor’s race. But Newsom’s positions on criminal justice have won him the backing of those close to Brown, including Dana Williamson, a former aide and current political adviser to the governor.

“The lieutenant governor’s really the only candidate who has talked about criminal justice reform and embraced the concept that we should be rehabilitating people and, you know, giving them a chance to do better,” she said.

Chiang hasn’t talked much about criminal justice on the campaign trail but laid out a middle-of-the-road approach to KQED, saying he supports bail reform and putting resources behind helping criminal offenders.

“As governor, I will help lead the difficult conversations that must happen between law enforcement and communities of color and emphasize a community-oriented approach to policing that builds stronger relationships and understanding,” he said.  “At the same time, we need to fully fund our police departments so they can recruit the best officers and provide them with the kind of training they need to understand how to work and live with diverse communities.”

Former state Schools Superintendent Delaine Eastin has also staked out a very progressive position on criminal justice but is trailing in polls.

While voters might be able to tease out candidates’ stances on policy, there are other, less discussed arenas of governing where Brown’s decisions have made a big impact. Brown has named a far more diverse set of judges and parole board members than his predecessors, and allowed a record number of parole releases to go forward.

“The appointments to the bench do have a very important, long-term effect,” said Kent Scheidegger, legal director of the conservative Criminal Justice Legal Foundation and a critic of Brown’s approach to criminal justice. “It’s a gradual one that doesn’t necessarily show up right away. But I think we are seeing California courts generally, and the California Supreme Court in particular, being more receptive to arguments made by defendants.”

Scheidegger said the governor’s political power — and fundraising strength — have also had an impact. Brown has put his sizable war chest behind promoting changes at the ballot box like 2016’s Proposition 57.

That measure chipped away at a legacy from Brown’s first terms as governor that many blame for the prison overcrowding: determinate sentencing, which sets a fixed prison term at the time of conviction. Proposition 57 gave the parole board more discretion on when to release an inmate. Scheidegger opposed Proposition 57, and believes the governor is “fundamentally mistaken on a lot of sentencing issues.”

But criminal justice reform advocates like Lenore Anderson believe the changes of the last seven years are only the beginning. Anderson is director of Californians for Safety and Justice, which wrote Proposition 47.

“What’s been so exciting to see in California over the last few years is the popularity of criminal justice reform being demonstrated at the ballot,” she said. “Realignment was enacted through the Legislature and at the time the common-sense thinking was that the public may not be ready for criminal justice reform. But what we found out through Prop. 47 and Prop. 57 is the reverse.”

Anderson believes the next governor should tackle something that seemed impossible just seven years ago: closing state prisons and finally reducing the amount of money Californians spend on incarceration.