In
a feat of Orwellian bravado designed to drive
down a ballooning prison population,
California recategorized domestic violence, a
crime with the word “violence” in its very
name, into
a “non-violent,” “non-serious”
misdemeanor offense.
The history of California criminal justice
reveals the twisted path and misaligned
incentives that led to this point.
At
the California constitutional convention in
Monterey in 1849, the delegates established a
basic statutory plan for crime and punishment.
After much experimentation over the next 60
years, the California Legislature adopted the
Indeterminate Sentencing Act in 1917. The Act
emphasized rehabilitation of inmates.
Indeterminate sentencing is a sentence imposed
as a range, rather than as a fixed term. An
offender served the minimum term of the
indeterminate sentences, at which point he
appeared before the Directors of the Board of
Prisons or, as it is known today, the parole
board, to determine whether the inmate had
been sufficiently rehabilitated to be released
from prison.
The
indeterminate sentencing scheme operated for
the next 59 years. But, it increasingly came
under criticism for three reasons.
· There
appeared to be disparities in its application
along racial lines
· There
was a perceived lack of transparency about how
sentencing decisions were made.
· Finally,
there was lack of uniformity in its
application, which led to discrepancies in
sentencing for similar classes of crimes.
In
response, the State Legislature passed the
Uniform Determinate Sentencing Act of 1976,
which was signed into law by Democratic
Governor Jerry Brown.
Former
Governor Jerry Brown stated in 2016 that his
intention behind signing this legislation was
that he “…was aware that some of the sentences
by the parole board, some of the decisions
came up with disparate results so some would
be kept a lot longer than others and people
were alleging racial disparities.” Continued
Brown, “…there was also, I had to try to put
more certainty into the process. I thought
clarity and certainty of prison time would act
as a deterrent.”
Whereas
the goal of the prior indeterminate sentencing
structure centered on rehabilitation of the
individual, the explicit aim of determinate
sentencing was punishment:
The
Legislature
finds and declares that the purpose of
imprisonment for crime is punishment. This
purpose is best served by terms proportionate
to the seriousness of the offense with
provision for uniformity in the sentences of
offenders committing the same offense under
similar circumstances. (Uniform Determinate
Sentencing Act of 1976)
Moreover,
despite the stated objective of uniformity,
the Legislature added sentencing enhancements
to the determinate sentencing program. A
sentencing enhancement increases an offender’s
prison time, if deemed necessary by a judge,
depending on the severity of the crime
committed by the offender. Regardless,
therefore, of the expressed desire for
uniformity in sentencing, these enhancements
would not foster consistency because they
would be deployed unequally, depending on the
circumstances of the crime committed. The
provisions of the Uniform Determinate
Sentencing Act engendered unintended
consequences that California grapples with
this today.
Drive-By
Sentencing
The
number of people imprisoned began to swell.
California’s incarcerated population grew from
32.4 prison commitments per 100,000 residents
in 1977 to 39.2 in 1978. By 1997, the prison
population had increased nine times to 155,276
inmates. By the early 2000’s, California’s
prisons housed approximately 180,000 inmates.
As the number of prisoners continued to grow,
California constructed more prisons to
accommodate them. Twenty-one of the 35 prisons
in California were built during this period. A
combination of lengthy sentences brought about
an ever growing list of enhancements,
colloquially known as “drive-by sentencing,”
and the removal of parole as a mechanism for
early release were directly responsible for
the explosion of the prison population.
The
massive growth in prisoners led to declining
conditions in overcrowded prisons. Several
lawsuits were filed, claiming that the medical
care in prisons in California violated the 8th
Amendment of the United States Constitution.
In 2011, the US Supreme Court ruled in favor
of the prisoners and mandated that California
reduce the prison population to 137.5%
capacity within two years. Within a very short
amount of time, California had to find a way
to shrink the number of incarcerated
individuals, a requirement that spawned many
hasty attempts to reduce the prison
population. The goal had changed again. Where
it had once been rehabilitation, and then
punishment, now the focus was the rapid
depopulation of prisons filled with too many
inmates.
California
passed three laws to reduce the prison
population:
· The
Public Safety Realignment Initiative of 2011
provided that an individual convicted of
certain non-serious, non-violent and
non-sexual felonies with a sentence longer
than one year should serve the sentence in
county jail rather than state prison. Further,
when inmates were released from county jails,
they would receive supervision at the county
level, rather than being placed on state
parole.
· Proposition
47, known as The Safe Neighborhoods and School
Act, was adopted in 2014. The Proposition
redefined three broad categories of crime,
thefts, forgeries and drug possession from
felonies to misdemeanors.
· Finally,
Proposition 57, officially titled the
California Parole for Non-Violent Criminals
and Juvenile Court Trial Requirements
Initiative, was enacted in 2016. Under
Proposition 57, individuals sentenced for
non-serious, non-violent and non-sexual
felonies were eligible for parole after they
served the longest term of imprisonment
imposed by a court for their primary offense,
if they no longer posed a risk to the public.
Proposition 57 also increased so-called “good-time” parole
credits given
to prisoners who completed educational or
rehabilitation programs in prison.
Domestic
Violence Nonviolent?
These
three laws to reduce California’s prison
population have had significant consequences
for victims of one of the most serious and
deeply personal crimes: domestic violence.
Pursuant to these laws’ revisions, domestic
violence is now classified as a non-violent,
non-serious and non-sexual crime and
is treated
as a misdemeanor under California law.
According
the California Department of Justice’s
OpenJustice portal, from 2012 to 2021,
California recorded 1,614,424
domestic violence-related calls for
assistance from law enforcement.
While this represents approximately 2.5% of
California’s population, the total amount of
domestic violence may be underreported.
According to a 2010 study done by the Los
Angeles County Public Health Department
entitled Domestic
Violence Data Sources, one
of the reasons for this dearth of reporting
comes from a discrepancy in California’s
mandated reporting laws and a doctors
obligation under the Health Portability and
Accountability Act (HIPAA). The inconsistency
would lead many doctors not to report domestic
violence to law enforcement out of fear of
breaching HIPAA.
An
oft-ignored subset of domestic violence and
family violence is child abuse. Yet, there is
no greater injustice than the abuse of a
child. Children are defenseless, depend on
adults for their safety, and their life
outcomes are inextricably linked to the care
they receive. The intentional weakening of
mechanisms of accountability for those that
abuse children is especially significant in
Los Angeles County. LA is in the midst of a
massive child abuse crisis, brought on by
decades of systemic neglect at the county,
state and federal levels.
A
2019 audit of
the Department of Children and Family Services
(DCFS), entitled Los
Angeles County Department of Children
and Family Services: It Has Not
Adequately Ensured the Health and Safety
of All Children in its Care,
which was conducted by state auditor Elaine
Howle, revealed that from fiscal years 2013-14
through 2017-18, 257 children in LA County
died from abuse or neglect. Of those 257, 69
had some type of prior involvement by the
Department in their homes. By comparison, in
New York City there were 52
child homicides during
the same five-year period.
The
driving purpose of the current
rules was
to cut the number of people in prison as fast
as possible. The fallout for victims of
domestic violence and child abuse has been
severe. Categorizing domestic violence as a
non-violent offense shocks the conscience and
defies logic. In examining the effect of the
passage of the Uniform Determinate Sentencing
Act of 1976, Governor Jerry Brown offered
advice for all those attempting criminal
reform.
“Sentencing should not be the
play toy of ambitious politics,” Brown
proclaimed, “It ought to be the judgment of
serious-minded individuals who are not
running for office but have in mind public
safety and have in mind the changes men and
women can make over time.”
This
commentary is also posted on LA
Progressive.
