Criminal Justice Reform: Has California Done Enough?
by Amanda Stephens
Associate Editor, Vol. 25
2.2 million people are incarcerated in the United States.[1] Of those millions of people, 67% of those individuals are people of color.[2] This fact is not new. Scholars and activists over the last decade have worked tirelessly to bring attention to the severity of this issue, speaking loudly about the culture behind and consequences of mass incarceration.[3] Some states, like California, have finally started to listen.
Mass Incarcerations Narratives
The central driver of mass incarceration is nonviolent and drug offenses. The New Jim Crow explicitly labelled drug offenses as the root of mass incarceration of black Americans.[4] Many reforms follow the association of drug offenses with mass incarceration, as more prosecutors agreed to no longer charge drug possession offenses, especially marijuana charges.[5]
However, some scholars push back on that analysis, arguing instead that convictions of violent crimes drive up prison population numbers.[6] The spike in incarceration rates from 1990 through 2009 suggest that “60% of all additional inmates have been convicted of a violent offense.”[7] While not prosecuting drug possession offenses promotes change, it ignores one of, if not the, significant basis for the increase of incarceration rates following the war on drugs.
California’s Reforms
California has a large prison population of around 120,000 incarcerated individuals. As of January 15, 2020, all but three prisons in California exceeded their max capacity.[8] Over the last two years, California passed a slew of criminal justice reforms to address increasing outrage surrounding mass incarceration.[9] These reforms attack a multitude of serious issues including decreasing sentence enhancements for prior felons[10], providing more diversion programming for defendants with children[11], and preventing further funding of private prisons.[12] Many of the reforms just recently came into effect at the start of the new year.
To determine how effective these laws will be in addressing the racial disparity of California prisons, we must determine whom the reform laws affect.
Whom do these laws target?
On the whole, the reform bills passed by California apply to nonviolent offenders. For example, the diversion program established by SB 394 applies only to people charged with misdemeanor or non-serious, non-violent crimes.[13] SB 136 changed a law that allowed sentence enhancements for prior convictions.[14] However, SB 136 only affected nonviolent crimes; a three-year sentence enhancement still attaches to individuals convicted of a violent felony if they have a prior conviction for a violent felony.[15]
Whom do these reforms leave out?
Most significantly, California’s reforms overlook individuals charged with violent crimes. As of 2018, half of the California prison population had committed a violent crime.[16] As of 2018, only 10% of the prison population were non serious, non-violent, non sex registrant populations that had not committed a prior serious or violent crime.[17] The other 90% of the prison population maintained some kind of violent criminal history.
California law still punish individuals heavily for committing crimes of violence. For example, individuals charged with firearms enhancements still face up to 10 years of additional time on top of the crime they had committed.[18] That enhancement passed in 2017, only a few years before the 2019 reform wave.
How do these reforms affect overincarceration of minorities?
According to the California Department of Corrections, about 28% of those incarcerated are black.[19] Of that 28%, just over half are locked up for violent crimes.[20] Those individuals will not have the possibility of diversion despite having young children, nor will they be excluded from the possibility of a three-year enhancement if they have a prior violent crime on their record.
The incarceration rate of black men is five times greater than any other race in California.[21] The criminal justice reforms sought to provide relief for those convicted of nonviolent crimes and as a result, do not seem to address the overrepresentation of black men in California prisons. Given the small percentage of individuals convicted of nonviolent crimes and that half of black men in prison were convicted of violent crimes, it is unlikely that any major shift in prison demographics will happen following the new laws.
If violent crimes do represent such a high percentage of incarceration, why do states trying to support criminal justice reform focus more heavily on nonviolent crimes? Quite simply, the easiest way for legislatures to garner support is to focus on nonviolent crimes. However, research shows that people age out of crime in their 20s and 30s.[22] Informing legislatures of this new research is a critical next step to gaining more support for expanding the reforms to a larger prison population.
Conclusion
California made progress in enacting these reforms. California can and should be considered a role model in starting to address issues of mass incarceration. However, the march toward change cannot stop at the recent collection of reform bills. Addressing overincarceration with nonviolent crimes provides the first step to solving mass incarceration. But limiting reforms to nonviolent offenses overlooks almost 90% of the prison population in California that currently serves or has served time for violent offenses. States who choose to follow California’s example must consider reforming punishment for violent offenses as well if they want to see their prison populations drop.
Additionally, future reforms should consider the disparity of incarceration rates across racial groups. While these reforms will likely reduce the overall prison population, they do not seem to address the overrepresentation of black men in California’s prison system. The next wave of reforms must consider ways to reduce the overrepresentation of black men in the California prison systems.
[1] Sentencing Project, Criminal Justice Facts (accessed Jan 19, 2020) https://www.sentencingproject.org/criminal-justice-facts/
[2] Id.
[3] See e.g. Michelle Alexander, The New Jim Crow (2010); James Forman Jr., Locking Up Our Own: Crime and Punishment in Black America (2017).
[4] See Alexander.
[5] https://www.nbcphiladelphia.com/news/local/philadelphia-district-attorneys-office-larry-krasner-memo-no-longer-charging-for-small-amounts-of-marijuana/57446/
[6] See e.g. John F. Pfaff, Locked In (2017).
[7] Pfaff at 187.
[8] CA Dep’t of Corrections & Rehabilitation, Weekly Report of Population, Jan. 15, 2020, https://www.cdcr.ca.gov/research/wp-content/uploads/sites/174/2020/01/Tpop1d200115.pdf
[9] Gabrielle Canon, “Once Known for ‘three strikes’ law, California is now embracing criminal justice reform,” USA Today, Sep. 18, 2019, https://www.usatoday.com/story/news/politics/2019/09/18/about-californias-criminal-justice-reform-bills/2353853001/
[10] 2019 California Senate Bill No. 136, California 2019-2020 Regular Session (“SB 136”)
[11] 2019 California Senate Bill No. 394, California 2019-2020 Regular Session (“SB 394”) https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200SB394
[12] 2019 California Assembly Bill No. 32, California 2019-2020 Regular Session (“AB 32”) https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB32
[13] SB 394.
[14] SB 136.
[15] Id.
[16] CA Dep’t of Corrections & Rehabilitation, Offender Data Points, Jan 2020, https://www.cdcr.ca.gov/research/wp-content/uploads/sites/174/2020/01/201812_DataPoints.pdf
[17] Id.
[18] 2017 California Senate Bill No. 620, California 2017-2018 Regular Session, https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180SB620.
[19] CA Dep’t of Corrections & Rehabilitation, Offender Data Points, Jan 2020, https://www.cdcr.ca.gov/research/wp-content/uploads/sites/174/2020/01/201812_DataPoints.pdf
[20] Amanda Bailey & Joseph M. Hayes, “Who’s In Prison: The Changing Demographics of Incarceration,” Public Policy Institute of California, Aug. 2006, https://www.ppic.org/content/pubs/cacounts/CC_806ABCC.pdf
[21] Id.
[22] Sentencing Project, Criminal Justice Facts (accessed Jan 19, 2020) https://www.sentencingproject.org/criminal-justice-facts/
