Jerry Brown Will Leave Lasting Impact on Criminal Justice in California

During his first stint as California governor 40 years ago, Jerry Brown appointed a slew of diverse — sometimes controversial — judges and signed a sentencing law that fundamentally changed how the state approached punishment.

In some ways, things weren’t so different during Brown’s second go-around in the governor’s office.

Over the past eight years, Brown oversaw a dramatic shift in how California approaches criminal justice, including authoring a law that upended how the state treats nonviolent offenders and writing a ballot measure that rolled back the "lock 'em up" sentencing philosophy he championed in 1976.

This time around, the governor appointed more than 600 judges, including four to the state’s high court who represent not just more women and people of color, but also a much broader set of career experiences and philosophical backgrounds.

But he’s gone much further than he did in the 1970s and 1980s: Over his final two terms, Brown issued 1,189 pardons and 152 commutations — dwarfing any of his predecessors and his own previous record, when he issued 404 pardons and just one commutation.

He’s also vetoed dozens of bills that would have created new crimes and signed numerous sentencing reforms that give offenders chances at shorter sentences.

Brown's Evolution on Criminal Justice

In some ways, Brown’s evolution tracks with that of California voters, who have embraced even further-reaching criminal justice reforms than the governor initially wanted. Both Brown and the electorate were encouraged down that path by a landmark legal case that resulted in the U.S. Supreme Court ordering the state to reduce its prison population by tens of thousands of inmates.

Today, the state has about 34,000 fewer people in state prisons than it did when Brown was sworn into the governor's office in 2011.

“Gov. Brown has presided over a legacy of criminal justice reform that is really unmatched across the country,” said Stanford University’s Michael Romano, who runs the university’s Three Strikes Project and helped write two of the recent criminal justice ballot initiatives that Brown was not involved in.

“The whole United States prison population has come down over the past 10 years, and all of that reduction is a result of the reductions that we've seen in California. And at the same time, the crime rates in California from when these reforms started to kick in, in 2011, to today are down,” Romano said. “So we've been able to reduce our prison population, significantly reduce the amount of injustice in the system, and improve public safety. And Gov. Brown has presided over that.”

Romano credited Brown for his creative approach to the problem, saying the governor — the only person to ever lead California for four terms — understands the power of that office and what he called “the administrative state.”

He noted that both of the sweeping laws that Brown authored — Assembly Bill 109, known as realignment, and Proposition 57, which made broad changes to parole rules — did not rely on simply reducing criminal sentences or throwing the doors of prisons and jails open indiscriminately.

“He has not reduced a single sentence" with the changes in law, Romano said, "but he has shifted the responsibility and the incentives within the system."

Under Proposition 57, which voters approved in 2016, that meant giving prison officials more flexibility to reward prisoners who have participated in rehabilitative programs with shorter sentences. Under AB 109, it meant redirecting most nonviolent offenders to county jails instead of state prisons to serve their sentences, giving counties more incentives to rehabilitate offenders.

Brown pushed both measures not only because he came to believe that many of the “tough on crime” laws of the 1980s and 1990s were a mistake, but because he had to. In the first months of his second administration, the U.S. Supreme Court issued that order, telling California its overcrowded prisons were unconstitutional because inmates were being denied medical care.

While the changes championed by the governor haven't been without critics, Romano believes Brown’s approach was brilliant because it avoided the political pitfalls of releasing inmates early, and marshaled forces Brown had at his disposal within state government.

“This type of administrative reform has proven in some ways to be more effective than any other type of criminal justice reform and mass incarceration reform that we typically talk about,” Romano said.

'Too Much Change Too Quickly'

Of course, not everyone is on board. Law enforcement groups opposed most of the major sentencing reforms that have been adopted in recent years, and continue to blame those changes for the increase in property crimes that some communities have experienced.

Morgan Hill Police Chief David Swing is president of the California Police Chiefs Association. He said there’s been a “sea change” in how the state approaches criminal justice under Brown.

“And we would say that it's been too much change too quickly,” he said. “When you have that much change all at once, there isn't an opportunity to really evaluate the efficacy of those programs.”

Swing is right. The state has not made an effort to track the effects of many of the changes, instead relying on outside groups like universities and think tanks to draw their own conclusions.

He believes the reforms have come at a cost but — in a sign of how far the conversation has come over the past decade — he also said police groups don’t want to return to the days of simply locking people up.

“We know that incarceration doesn't solve the problem. There has to be a program afterwards, even during custody, in order for someone to have the best chance of being successful,” he said, arguing that the state hasn’t done enough to invest in those types of programs amid the significant reforms.

Swing also said the state has gone too far, particularly with measures like the voter-approved Proposition 47, which Brown did not support when it was on the ballot.

Proposition 47 helped reduce the prison population by reducing most drug possession charges from felonies to misdemeanors — meaning those inmates would serve their time in local jails, not state prisons — and made petty theft of items up to $950 a misdemeanor as well. It also allowed people to retroactively petition courts to change their sentences.

A Changing Relationship With Law Enforcement

Former state Sen. Mark Leno said the history behind Proposition 47 shows how law enforcement, long a powerful lobbying force in Sacramento, overreached at times during Brown’s tenure. And how the governor became increasingly more willing to push back against police and prosecutors over his two terms.

Leno said prior to voters weighing in on Proposition 47 in 2014, he authored a measure that didn’t go quite as far as the initiative, but would have let prosecutors decide whether to charge someone with a felony or misdemeanor in many drug and petty theft cases. But law enforcement groups — particularly prosecutors — lobbied the governor to veto the bill, and he did.

When he was elected in 2010, Leno noted, Brown was attorney general and had the support of all the state’s major law enforcement groups. But by the last few years of his governorship, Brown was pushing ballot measures, like Proposition 57, against the wishes of district attorneys and signing police oversight bills over the cries of police associations.

“Once he became governor he probably had a clearer view of how serious the prison crisis was and that he was under court order to do something about it,” Leno said. “He in some ways almost reverted more back to his Jesuit roots of fairness and making sure people have second chances in life.”

That meant signing bills that reduced criminal sentences, Leno said, but also vetoing those that would have led to more people being incarcerated. It included signing a landmark bail reform bill last year that, if upheld by the voters in 2020, will eliminate the requirement that suspects pay money to secure their release ahead of trial.

“I don't think it's an overstatement to say Jerry Brown has been visionary in this area. He looked down the road, saw what needed to be done, and then figured out what to do and did it. That's the definition of a visionary,” Leno said.

All those policy changes, Leno said, will impact the state’s criminal justice system for years to come.