by Vibhav Mittal, San Francisco attorney, and Anthony Barkow, executive director of the Center on the Administration of Criminal Law at New York University School of Law
California is often where national policy is born. In the area of criminal law, though, California is a follower. On November 4, California voters will consider a proposition that focuses on alternatives to incarceration. Unfortunately, Prop. 5 goes too far and should be rejected. But it contains ideas that the California legislature and Congress should consider.
California spends nearly the same amount on prisons as it does on higher education. If Prop. 5 were passed, California would save money by reducing prison and parole costs, pragmatically grappling with the reality of the state’s budget crisis and its overcrowded prison system.
In many ways, Prop. 5 makes California’s criminal code more just. Being a criminal should not always mean jail time. Convictions related to mere drug possession – victimless crimes – are a salient example. In 2000, California voters agreed and passed Prop. 36, which created a special drug treatment diversion program for certain nonviolent drug crimes.
This program has been a success. However, like many things in the state, funding for that program has disappeared. Prop. 5 forces California to fund these programs, covering the costs, in part, by reducing the number of prisoners and parolees. Funding such alternatives to prison must be a priority for the state to realize the long-term benefits of laws like Prop. 36. Given that the results of treatment may not be seen immediately, such programs must be protected from the politics of the state annual budget process.
Prop. 5 further solidifies this shift in focus to rehabilitation and treatment via organizational changes. Having one set of government officials run prisons, parole programs, and rehabilitation centers does not make sense. These institutions all have different priorities and purposes. Thus, Prop. 5 creates the position of Secretary for Rehabilitation and Parole and installs a Chief Deputy of Rehabilitation in each prison. These new officials would assist criminals rehabilitate, reduce recidivism, and rightly focus on correction rather than merely punishment.
Reducing incarceration costs by not jailing those who do not need to be comports with common sense. Many other states focus on costs when implementing criminal sentencing policy. Such analysis allows these states to implement more rational and cost-effective criminal justice systems. And reducing incarceration costs, standing alone, does not support either reduced or increased sentences. Sometimes states raise sentences in light of cost data, knowing that they have the resources to afford the financial outlay. Other times, states lower sentences for some crimes (particularly nonviolent crimes) in order to reserve scarce prison resources for violent criminals and achieve the same overall reduction in crime, but at a lesser cost. States that have focused on incarceration costs in implementing sentencing policy have achieved lower crime rates or maintained already low rates while saving money.
Like these policies in other states, if passed, Prop. 5 would save California money while also shifting the system’s focus to rehabilitating and treating offenders for whom incarceration may not be the best solution.
But which offenders should be sent to jail and which put into treatment? Prop. 5’s answer includes too many types of offenders. Prop. 5 allows offenders who harm victims to avoid incarceration – unlike Prop. 36, which only put offenders who commit victimless drug possession crimes in treatment programs. Prop. 5 essentially creates an “I was on drugs so set me free” defense. Under Prop. 5, an offender can avoid jail for car theft or breaking into someone’s home by claiming that his drug use caused him to commit the crime. A judge would be forced to sentence him to treatment instead of jail, if the judge believes the crime was related to drug use. Where there are identifiable victims, it is often hard to swallow treatment as the only punishment.
Prop. 5 gets it right – but it also gets it wrong. Although California voters should reject it, Prop. 5 can be an imperfect guide for the California state legislature – and Congress – on the types of programs that are needed to move away from a regime devoted simply to building more prisons. State lawmakers must take up this issue and not let prison reform only occur through California's referendum process.
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