Mimesis Law
19 February 2017

California Is Losing Its Grip On Criminal Justice

December 16, 2016 (Fault Lines) – California, America’s biggest economy, has its share of problems. Although it’s still growing at a rate that’s the envy of sclerotic EU countries for years now, it’s been getting substantially outperformed by the likes of Texas, where tax and regulatory burdens are much lower.

Aside from the obvious immediate costs, Californians pay a heavy indirect price for all that government. With an unemployment rate that remains above the national average, the Golden State’s turned into one of the nation’s biggest losers in terms of interstate migration.

The phenomenon of Californians fleeing to red states is no longer just something the natives complain about on Twitter, but a very real trend. Texas in particular, the nation’s biggest interstate-migration winner, is absorbing a lot of economic refugees. Unlike in the rest of the nation, where moving rates remain broadly sluggish, the California-to-Texas outflow has already rebounded to pre-recession levels and is set to keep rising.

Those Californians who are employed and choose to stay behind turn over an awful lot of money for the promise of good governance. Has the state been honoring its obligations? Well, that depends on whom you ask.

The state’s finances remain mismanaged. Budget shortfalls aren’t as bad as they used to be, but California’s still very heavily in debt, massively exposed to pensions, retiree health care and bond liabilities, with the mediocre credit rating to prove it. When you’ve got as big a commitment to fund as the state’s (in)famously generous public-sector retirement plan, you need to perform triage and make cuts elsewhere. And as ever, one obvious candidate to get the shaft is the criminal-justice system.

Public defenders are the most obvious target of all. Never mind that funding indigent defendants’ access to competent, zealous representation under the Sixth Amendment is one of the few things government must pay for; year after year, across the nation, states as ideologically diverse as Louisiana, Missouri and New Mexico find ways to fail to meet their constitutional obligations or significantly scale back funding.

And California, far from being an exception, takes its disdain for poor defendants to a whole new level by simply not funding trial-level indigent defense. The burden is and remains entirely on local governments, which, compared to the state, struggle to raise revenues at the best of times and may be less well equipped to weather shocks like the recession. In fact, far from helping, California actively contributes to the problem by placing burdensome restrictions on local governments’ ability to tax residents.

In some counties, the situation is now so dire that public defenders have been driven to revolt. In September, 2013, 80% of Fresno County’s PDs signed a letter complaining of hugely excessive caseloads. Nearly two years later, the ACLU, taking a break from pushing progressive politics at the expense of people’s constitutional rights, sued the county and the state of California over their alleged failure to provide access to adequate counsel.

Gideon’s promise is all too often honored in the breach, and it’s disheartening to see the government of a state that prides itself on its commitment to society’s poorest and most vulnerable put so many obstacles in their path when someone accuses them of a crime.

Nor does the misery stop at the public defender’s office. In 2011, California’s notoriously overcrowded prisons resulted in the Supreme Court’s decision in Brown v. Plata, an Eighth Amendment case that alleged conditions in state prisons amounted to cruel and unusual punishment. SCOTUS affirmed a lower court’s order to California to cut its prison population to a mere 137% of what its facilities were designed to handle. (At the time, prisons were routinely holding two or even three times more people than what they were built for, the result of a thirty-year war on crime that increased the prison population by nearly 600%.) The feds gave Governor Jerry Brown and the lege two choices: build more prisons or slash the state prison population. And if you remember California’s approach to funding indigent defense, you’ll know exactly what they did next.

Rather than spend money they didn’t have on yet more prisons – a California tradition — or release anyone prematurely, the state chose to dump the problem in local governments’ laps. It passed and enacted AB 109, the California Public Safety Realignment Act, which forced counties to put up state prisoners convicted of “non-serious, non-violent, non-sexual” crimes in local jails and mandated they assume post-release supervisory duties.

The only saving grace was a reduction in both the minimum length of post-release supervision and the maximum sentence for a parole or probation violation, from 1 year to 6 months. Not only did this have the effect of reducing the counties’ new workload, but it amounted to the only real decarceration measure in the bill. And, of course, it allowed the state to claim it had fixed things without having to do anything politically risky, like set criminals free, or deal with the consequences of its inaction.

So what happened after California hijacked county facilities to allow it to claim it was meeting its constitutional obligations, all while returning too little in tax revenue for counties to do the state’s job for it? The changes to parole and probation, along with the lack of funds to provide proper supervision, meant AB 109 wasn’t purely for show: the state’s prison population was effectively going down, if only by a little.

Opponents of prison downsizing argued letting the “non-non-nons” go would mean more crime. Did it? While the California Department of Corrections and Rehabilitation claimed Realignment was a success, criminologists Magnus Lofstrom and Steven Raphael studied the problem in 2012 and found the critics had a bit of a point.

[Lofstrom and Raphael] concluded that the large reduction in incarceration following the passage of Realignment modestly increased property crimes, primarily by increasing the rate of auto theft, but the reduction in the incarceration rate had little effect on violent crime. More specifically, they estimated that each year realigned offenders were “free on the streets” resulted in 1 to 2 property crimes, although county-level and state-level models were not statistically significant.

More certain was the estimate that each year realigned offenders were incarcerated prevented 1.2 auto thefts. The effect of Realignment on auto theft was robust and statistically significant across various model specifications and units of analysis.

Ouch. Score one for the Crime & Consequences team? Well, it may not be as bad as all that. Purdue criminologist Jody Sundt tried to replicate Lofstrom and Raphael’s findings in 2014 and came to a different conclusion.

The results of this study showed that California’s Realignment Act had no effect on violent or property crime rates in 2012, 2013, or 2014. When crime types were disaggregated, a moderate to large, statistically significant association between Realignment and auto theft rates was observed in 2012. In 2013, however, this relationship weakened and by 2014, auto theft rates returned to pre-Realignment levels.

A temporary increase in auto crime is still an increase in crime, but Sundt’s findings suggest the effect was quite mild. Indeed, she celebrates Realignment, noting that its passage frees up state funds that, in theory, could be spent on things like rehab programs for drug addicts.

Why does any of this matter now, five years after the fact? Because in 2014, California voters passed Proposition 47, which changed possessing hard drugs from a felony to a misdemeanor. In a series of articles, the Desert Sun has been showing how the state of California’s mastery at kicking the can down the road has come back to bite it in the butt.

Cops can still jail anyone caught with meth, heroin or cocaine, but because many counties don’t have enough jail space to hold misdemeanor suspects, addicts are often released later that same day, neither punished nor rehabilitated.

Because California didn’t actually fix its overcrowding problem, and in fact failed to properly comply with the court order in Brown, drug misdemeanants are now going free. So is the state spending any of the money it saved by press-ganging county jailors to get these people help, get them into rehab? Of course not, even though Prop 47 explicitly earmarked funds for that purpose.

Prop 47 earmarked millions saved in prison costs for inmate rehabilitation, but not a penny has been spent. Meanwhile, the state’s shortage of treatment programs is more glaring than ever.

Cops are doing nothing about it, because they quite literally can do nothing.

“Police aren’t going to spend their scarce time on what they believe to be a fruitless activity,” said Jim Bueermann, a former Redlands police chief. […] “I bet there is a lot of methamphetamine being poured out on the streets of California now.”

Then there’s crime. When they passed Prop 47, California voters also chose to raise the threshold for petty theft from $500 to $950. As a result, lots of un-incapacitated, un-rehabilitated addicts appear to be stealing to get a fix.

[Stephen] Johnson, who has spent nearly four decades as an LA-area cop, recently led a department study on Prop 47, producing some of the first front-line data about how the law has impacted crime. The department tracked about 53,000 people after they were arrested for Prop 47 crimes, revealing that they were being re-arrested at a normal rate, and that 92 percent of their charges were for additional drug possession or property crimes. In Los Angeles County, thousands of Prop 47 offenders appeared to be stuck in a cycle of drug use and theft, but few were graduating to violent crime.

And finally, California Department of Justice data suggest the auto theft effect from Lofstrom’s, Raphael’s and Sundt’s studies has come roaring back.

Statewide, property crime climbed 8 percent from 2014 to 2015. Theft of at least $400, a crime category in which most penalties were reduced by Prop 47, rose by 10 percent to the highest point in a decade, though some of the change is the result of reclassifying crimes. The single largest contributor to rising property crime was a 12 percent increase in car theft

All those years of skimping and cutting corners, refusing to fund basic constitutionally-mandated services for inmates and defendants, and putting the problem off for another day and another administration? They’ve come home to roost. The status quo, such as it is, works for literally no one: not the drug offenders running wild in the street, not the property owners they victimize, not the cops who are forced to stand by and do nothing, certainly not the under-represented defendants or inmates crammed into overflowing jails and prisons.

This is completely dysfunctional, and it’s high time the California lege step up to the plate and honor its financial obligation to run the criminal-justice system. “Starving the beast” doesn’t work, not when people’s civil liberties are at stake.

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  • maz
    16 December 2016 at 10:08 am - Reply

    Don’t worry: A few more years, and we’ll have the last few decisions currently entrusted to our state congressmen recast as citizen initiatives. Just think: A state government with 39 million appointed representatives! Truly the will of the people will now be served!

    The truly sad thing is it’s quite possible direct democracy carried to its most absurd extreme could actually provide more efficient and rational leadership than that evinced by our elected officials lo these past 30-some years…

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