Some inmates are getting released early under Prop. 36, but there are as many as 2,000 more who are still waiting on their petitions for re-sentencing. So what comes next? What have we learned so far, and what does it say about other efforts to overhaul California's criminal justice system?
We turn to two people with different perspectives on the law and the criminal justice system: Bonnie Dumanis, district attorney of San Diego County, where the very first inmate re-sentencing under Prop. 36 occurred a year ago; and Robert Weisberg, professor of law and co-director of the Stanford Criminal Justice Center.
SCOTT SHAFER: Let me begin with you D.A. Dumanis. San Diego County has released more than 130 three strikers. How is that going?
BONNIE DUMANIS: Out of all of our cases, so far we’ve only had two reoffend. One was a small amount of drugs in their rehab program, and the other one was the same offense he had: Eleven days after he got out, [he] grabbed some keys, got in a stolen car, and then there was a chase and he evaded police.
SHAFER: Robert Weisberg, what stands out for you as we begin this assessment of Prop. 36. How’s it going so far?
ROBERT WEISBERG: I think one has to say that it has gone pretty well, according to the original justifications for it. Most obviously of course, that the recidivism rate is quite low, but I think it was always foreseen that Prop. 36-released inmates would likely have a relatively low recidivism rate if for no other reason that they tend to be older. And a major determinant of whether somebody commits new crimes, certainly more violent crimes, is how old they are when they get out.
SHAFER: Let me go to you again D.A. Dumanis. Are you concerned that the release has slowed down now?
DUMANIS: Well, they actually showed us some statistics and April 2012 was the peak. So we started in December with 10, and we went up to 204 in April, but there’s been a steady decline in the numbers of petitions that have been reviewed. Part of that was the fact that [for] the people who have been released, … the determinations are far easier. Right now we are dealing with those really hard, challenging cases where people have mental health issues, or have some issues that need to be dealt with, or some concerns that everybody has about them.
SHAFER: Does it make it worse, Bonnie Dumanis, that these inmates do not have to be on parole or under any kind of supervision like say, the inmates getting out as a result of realignment?
DUMANIS: I don’t know that I would say that, but what I would say is if you take somebody who’s been in prison for 16, 18 years and you just put them back into the community with no resources, I think you’re setting them up for failure. That’s one of the things that I think wasn’t addressed – the need for wraparound services when folks came out. The first person we released had never seen a cell phone because he had been in prison for 16 years.
SHAFER: Robert Weisberg, Prop. 36 was the very first time I believe that voters, anywhere in the United States, passed a retroactive sentence reduction for inmates, and it passed in all 58 counties, including the toughest-on-crime counties like Kern County. Does this, do you think, suggest that perhaps we’re about to enter a new era of criminal justice reform in California?
WEISBERG: If you look around the nation over the last 15 years or so, there’s been what you might call a fair amount of political buyer’s remorse about the extremely harsh sentencing regimes that were instituted, especially in the 1970s; we had California’s determinate sentencing law, but more broadly we had all the mandatory minimum drug acts. Lots of states managed to pull off interesting political compromises, kind of nuclear truces between the parties, you know, not to politically demagogue crime and justice issues. And we’ve had a lot of initiatives that had led to reductions in incarceration in other places. I think Prop.36 is just a very striking example of that.
SHAFER: Bonnie Dumanis, what would you add – do you think there’s a kind of buyer’s remorse going on, or is there more of an appetite for additional reforms in California?
DUMANIS: I’m really worried that with the realignment, and the three strikes, and all that’s going on with limited resources, that there is a definite public safety risk. We are cooperating and working because it’s the law, but we are very attuned to the fact that property crimes have gone up, drug crimes have gone up. I do think what we discovered from when three strikes passed in 1994, was that for a long time judges did not have discretion, then they did have discretion. I remember, because I was a judge, sentencing someone on a petty theft with a prior to 25 years to life and saying, “But for the law, this would not be the sentence I would do.”
SHAFER: Robert Weisberg, last question to you. Looking forward, what does all this suggest about future reforms we might see? Or do you agree with the D.A. that perhaps we should let all these things settle out before we make any future changes in the system?
WEISBERG: Well, I’d split a difference here. The interesting thing about Prop.36 is that it was a major structural change in the penal code, in the sentencing law. I do think that, and the governor has indicated this, we might have to look more holistically at the penal code to see if it makes sense, to see if some of the structures of sentencing are too harsh, especially with various kinds of enhancements. That’s separate from the possibly short term and very, very vexing issue of realignment, as it responds to the prison overcrowding crisis. Because there we’re not so much talking about big structural changes in the length of sentences, but the reallocation of responsibility, down to the locals, all the interactive effects of sheriff and prosecutor and police authority. That remains a concern.
SHAFER: Robert Weisberg, co-director of the Stanford Criminal Justice Center, San Diego District Attorney Bonnie Dumanis, thank you both very much.
DUMANIS & WEISBERG: Thank you.