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Calif. Move From 'Tough On Crime' Marks New Era Of Reform

By Cara Bayles | December 16, 2018, 8:02 PM EST

Outgoing California Gov. Jerry Brown has undone many of the tough-on-crime policies he passed during his first stint as governor more than four decades ago.


Superior Court Judge Ross Moody rested his cheek in his hand as he mulled whether to send the woman standing before him in an orange jumpsuit to prison, though she hadn't been convicted of a crime.

A prosecutor wanted the woman, who was accused of violating a restraining order her mother had taken out against her, held on the $30,000 bail prescribed by San Francisco County, but the woman's public defender argued she had no chance of affording the bond.

Attorney Nick Vangrin said his client's family had been "broken apart because of drug addiction." She was homeless, he told the judge, and had only gone to her mother's house to ask for money and clothes. If the court was inclined to set bail, he said, $500 was more reasonable.

But the judge ultimately sided with prosecutor Sarah Spielberger, who called the woman a flight risk.

"All she had to do was comply with the civil injunction," Spielberger told the court. "She lasted maybe two weeks."

The October hearing exemplifies what critics like University of San Francisco law professor Lara Bazelon describe as two justice systems: one for the wealthy, who fight charges out of jail, and another for the poor, who are either incarcerated while they await trial or plead guilty even to crimes they didn't commit so they'll be released sooner.

"When a judge says to someone who's homeless, 'I'm going to set the bond at $5,000,' they might as well set it at $5 million," Bazelon said.

But a bill signed into law in August by outgoing California Gov. Jerry Brown seeks to remove money from the arraignment process starting in October 2019. The law has been part of a blitz of criminal justice measures Brown has approved before his term ends on Jan. 1.

Those measures, which also include easing punishments for minors and murder accomplices, garnered him both liberal accolades and censure from law enforcement groups saying he's gone soft on crime.

They would probably have drawn criticism 42 years ago from the Jerry Brown of his first gubernatorial administration, too. That Brown passed hard-line sentencing policies, and many advocates who now endorse his recent moves say he's one reason the state's prisons are overcrowded in the first place.

"If you know anyone who can figure out Jerry Brown, let me talk to them," said Brian Marvel, president of the Peace Officers Research Association of California, a lobbying group that represents 70,000 law enforcement professionals.

Brown declined to comment for this story, but his evolution could signal national trends in the politics of criminal justice, and other states may soon follow California's example.

Stanford law professor Robert Weisberg said Brown's policy shift might signal that "he wants to leave office with an emphasis on rational reductions in incarceration," some of which were passed by a young Gov. Jerry Brown, "who seems to have the same biological identity as the older Jerry Brown."

In 1976, Brown signed legislation that set up uniform sentencing guidelines and mandatory minimums, calling it a "major reform" providing "a certain, clear punishment for crime."

But, according to Weisberg, this determinate sentencing combined with a surge of subsequent "sentencing enhancements" — for gang involvement, sex crimes and gun possession — added years to defendants' prison time and contributed to California's skyrocketing incarceration rates. By 2006, Gov. Arnold Schwarzenegger declared prison overcrowding a state of emergency.

After inmates in 2009 won a court order requiring the state to slash its prison population by almost 30 percent, Brown, who was serving as Schwarzenegger's attorney general, did everything in his power to try to overturn that ruling, including an unsuccessful U.S. Supreme Court appeal. Once he was again sitting in the governor's chair, Brown struggled to meet prison reduction benchmarks, according to Don Specter of the Prison Law Office, who spearheaded the litigation.

But now Brown has been moving to undo some of his own past policies.

In August, he signed the legislation replacing cash bail with an assessment of various risk factors, which he said would guarantee that "rich and poor alike are treated fairly." The following month, he signed a bill that altered the felony murder rule so that accomplices, such as getaway drivers, could no longer be convicted of first-degree murder if a victim died at the hands of a co-conspirator.

While the Legislature drafted these bills, Specter said Brown deserves some credit.

"There was a lot of law enforcement opposition. The district attorneys were lobbying heavily against the change to the felony murder rule. The bail industry was lobbying hard against the cash bail bill," Specter said. "He did stand up to those pressures."

Two more bills signed by Brown would ease the prosecution of minors. One bars teenagers from being charged as adults, and another prevents children under 12 from being criminally prosecuted except in rape and murder cases.

That legislation piggybacks on ballot questions the governor spearheaded in previous years that made it harder to try juveniles as adults, allowed nonviolent offenders to seek early release for good behavior and reduced several felonies to misdemeanors.


Jerry Brown and Calif. Crime Policy Through the Years

Jerry Brown’s political career has been long, twisting and at times paradoxical. California’s criminal justice policy has also gone in opposite directions over the past five decades.

Secretary of state under Gov. Ronald Reagan

Governor of California


1976: Runs for Democratic nomination for president, loses to Jimmy Carter
1976: Passes Senate Bill 42, creating a determinate sentencing structure in California
1980: Runs for Democratic nomination as president, loses to Jimmy Carter (again)
1982: Runs for Senate instead of seeking a third term as governor, loses to San Diego Mayor Pete Wilson

Goes to Japan to study Buddhism and to India to work with Mother Theresa


1988: California adds sentencing enhancements for gang involvement

Chair of the California Democratic Party


1990: In Coleman v. Wilson, inmates sue the state in a class action over mental health care

Runs for president but loses Democratic nomination to Bill Clinton


1994: California enacts "three strikes and you're out" law mandating life sentences for third-time felons
1998: California enacts “use a gun and you’re done” sentencing enhancement, adding at least 10 years to a felony committed while the offender has a firearm

Mayor of Oakland


2001: In Plata v. Brown, a class of inmates sue the state over inadequate health care in overcrowded prisons
2006: Gov. Arnold Schwarzenegger declares prison overcrowding a state of emergency

Serves as attorney general during Gov. Arnold Schwarzenegger’s administration


2009: A three-judge panel in the Coleman and Plata cases mandates that California reduce its prison population
2010: AG Brown appeals the panel’s decision to the U.S. Supreme Court

Governor of California


2011: Supreme Court sides with lower court in Brown v. Plata, mandates that California reduce its prison population
2014: Voters pass Proposition 47, which downgrades some felonies to misdemeanors
2016: Brown signs a bill extending the deadline for inmates to apply for resentencing under the reductions enacted by Proposition 47
2016: Voters pass Proposition 57, which was endorsed by Brown. It allowed for the early release of nonviolent offenders
2017: Brown signs Senate Bill 620, striking mandatory sentencing enhancements for felonies committed with a firearm
2018: Brown signs bills ending cash bail, amending the felony murder rule and ending the practice of trying those under age 16 as adults



The policies have drawn their share of critics.

Marvel, the law enforcement officer lobby president, said the governor has participated in a recent push to "decriminalize crime in California."

The cash bail legislation has made strange bedfellows of civil rights groups, who say it could actually result in locking up more defendants, and the state's bail industry, which would cease to exist under the new law.

The bail industry has collected more than 570,000 signatures to have the bill go before California voters in a ballot question, a move that could put the law on hold until the 2020 election.

Jeff Clayton, executive director of the American Bail Coalition, calls the bill "a civil rights atrocity" and says he was surprised Brown signed it, in light of opposition from groups like the American Civil Liberties Union.

The ACLU originally endorsed, then revoked support for the bill, saying it allows prosecutors to block a defendant's release pending trial, and gives judges wide discretion to grant such requests.

Clayton said he thought the bail bill was "right up [Brown's] alley," because it tried to be both soft on crime and hard on crime.

But scholars say there's a logic to Brown's policy.

Bazelon, the USF professor, said he's been consistently concerned with belt-tightening, and eventually realized efforts at decarceration "make more sense fiscally and also from a humanitarian perspective."

"What we saw in the '90s and the first 10 years of the 21st century is, those tough policies don't work, and we're paying tens of thousands of dollars to lock a person up until they die," Bazelon said.

Brown's reversal may also reflect the political climate of California, where many policy measures are decided by popular ballot, according to Weisberg.

"There was a time when tough-on-crime initiatives were popular," Weisberg said. "California just swings one way or the other. It's swinging in the reform direction right now. I don't know how stable it is."

Clayton said voters are due for a swing in the opposite direction, and noted that in addition to his group's cash bail initiative, the 2020 ballot will include a question on repealing other criminal justice reforms that Brown has backed.

However, voters didn't seem to change course during the 2018 election. They picked a successor for Brown, Gavin Newsom, more in tune with his recent criminal justice policies than the Brown of old.

And the reforms that have already occurred could end up influencing other states, according to Bazelon.

"California has outsized influence, because we have such an enormous population and such an enormous economy," Bazelon said. "I do think some states will look at what we've done."

She noted, for example, that Pennsylvania lawmakers are reviving a stalled bill that would end the felony murder rule there.

"I wonder if now they'll have more of the wind at their back. They can say, 'Here's another state that has passed this reform,'" Bazelon said.

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com. 

--Editing by Brian Baresch.