Report

Proposition 57: Should Voters Provide State Officials With New Flexibility to Reduce the Prison Population?

Endnotes are available in the PDF version of this Issue Brief.

Proposition 57, which will appear on the November 8, 2016 statewide ballot, would amend the California Constitution to give state officials new policy options for reducing incarceration. The measure also would amend state law to require youth to have a hearing in juvenile court before they could be transferred to adult court. This Issue Brief provides an overview of this ballot measure as well as its potential impact on the state correctional system and the state budget. The California Budget & Policy Center neither supports nor opposes Prop. 57.

What Would Proposition 57 Do?

Prop. 57, “The Public Safety and Rehabilitation Act of 2016,” would amend the California Constitution to give state officials new flexibility to reduce the number of people incarcerated by the state. The measure would (1) create a new parole consideration process for people convicted of a nonviolent felony offense who are sentenced to state prison and (2) provide state corrections officials with new authority to award certain credits that reduce the length of state prison sentences. In addition, Prop. 57 would amend state law to require youth to have a hearing in juvenile court before they could be transferred to adult court for prosecution.

Proposition 57 Would Create a New Parole Consideration Process for People Convicted of a Nonviolent Felony Offense

Under current state law, most people convicted of an offense that results in a state prison term receive either a determinate sentence or an indeterminate sentence.

  • A determinate sentence is a prison term with a specified release date. Once individuals have completed their sentence, they are automatically released to parole, meaning that they are supervised in the community for a set period by state parole agents or county probation officers.
  • An indeterminate sentence does not have a specified release date. Instead, individuals serve a life term with the possibility of parole. After serving a minimum required number of years, individuals go before the Board of Parole Hearings, which determines “if or when an offender can be returned to society.”

For each type of sentence, the length of the prison term handed down by a judge often reflects sentencing “enhancements” or alternative sentences that are required by state law. For example, under California’s “Three Strikes and You’re Out” law, a person with one prior conviction for a violent or serious felony who is convicted of any new felony — a “second-strike” offense — receives a prison term that is twice what it would otherwise be under state law. People with at least two prior “strike” convictions who are convicted of a new serious or violent felony — a “third-strike” offense — receive a life sentence with a minimum term of 25 years.

Prop. 57 would amend the state Constitution to create a new parole consideration process for people convicted of a “nonviolent felony offense” who are sentenced to state prison. An individual would be eligible for parole consideration “after completing the full term for his or her primary offense.” The measure defines “full term for the primary offense” as follows: “the longest term of imprisonment imposed by the court for any offense, excluding the imposition of an enhancement, consecutive sentence, or alternative sentence.” This new parole consideration process would apply to people serving determinate sentences as well as to some individuals serving indeterminate sentences. Prop. 57 would require the California Department of Corrections and Rehabilitation (CDCR) to adopt regulations implementing this provision and to certify that such regulations “protect and enhance public safety.”

Proposition 57 Would Give State Corrections Officials New Constitutional Authority to Award Sentencing Credits in Order to Reduce Prison Terms

Under current state law, certain incarcerated adults are eligible to earn sentencing credits to reduce their prison terms. For example, state law gives the CDCR the authority to award a specific amount of credits to individuals who exhibit good behavior and/or complete “approved rehabilitative programming,” such as academic coursework, vocational training, and substance use disorder treatment. In addition, state law limits the amount of credits that prisoners may earn, outlines circumstances under which individuals may lose or be denied credits, and prohibits some individuals — including those convicted of murder — from earning any credits at all.

Prop. 57 would amend the state Constitution to give the CDCR authority “to award credits earned for good behavior and approved rehabilitative or educational achievements.” This new authority would be in addition to any authority granted to the CDCR through state law. Prop. 57 would require the CDCR to adopt regulations implementing this provision and to certify that such regulations “protect and enhance public safety.”

Proposition 57 Would Require Youth to Have a Hearing in Juvenile Court Before They Could Be Transferred to Adult Court

Under current state law, youth ages 14 to 17 who are accused of certain crimes can be tried in adult court. In some circumstances, state law requires the juvenile to be tried as an adult. In other situations, prosecutors have the discretion to directly file charges against a youth in adult court. In the remaining cases, a juvenile court judge decides — if so requested by a prosecutor — whether a youth should be transferred to adult court.

Prop. 57 would amend state law to require youth to have a hearing in juvenile court before they could be transferred to adult court for prosecution. As a result, under Prop. 57, “the only way a youth could be tried in adult court is if the juvenile court judge in the hearing decides to transfer the youth to adult court,” according to the Legislative Analyst’s Office (LAO). In addition, the measure would allow prosecutors to seek transfer hearings only for 16- and 17-year-olds accused of committing a felony, or for 14- and 15-year-olds accused of committing certain crimes outlined in state law, including murder, kidnapping, arson, and certain sex offenses.

Future Amendments to Proposition 57 Would Require Voter Approval in Some Circumstances

Both the statutory and the constitutional provisions of Prop. 57 could be amended:

  • Statutory provisions. The statutory provisions of Prop. 57 revise the process by which youth may be transferred to adult court. Changes to these provisions that “are consistent with and further the intent of” Prop. 57 could be approved in a bill passed by a majority vote of each house of the Legislature and signed by the Governor. The Legislature and the Governor could approve other types of changes to these provisions, but any such changes would also require voter approval.
  • Constitutional provisions. The constitutional provisions of Prop. 57 create a new parole consideration process and give state officials new authority to award sentencing credits. These provisions could be amended only by a subsequent vote of the people.

California Has Substantially Reduced Incarceration in Recent Years, But Significant Challenges Remain

In recent years, California has made significant progress in reducing the number of people involved with the state correctional system. The number of adults incarcerated by the state, which peaked at more than 173,600 in 2007, has declined to roughly 128,900, a reduction of more than one-quarter. This decrease resulted largely from criminal justice reforms adopted by state policymakers and by the voters in the years following a 2009 federal court order requiring California to reduce prison overcrowding to no more than 137.5 percent of the prison system’s capacity. These reforms were largely aimed at keeping people convicted of “lower-level” felonies out of state prisons, while also boosting opportunities for rehabilitation.

Despite this substantial decline in state-level incarceration, significant challenges remain. Specifically:

  • California’s prison system remains severely overcrowded. California currently houses more than 113,600 adults in 34 state prisons designed to hold a total of about 84,300 people.This means that the state prison system is operating at approximately 135 percent of capacity, which is just below the court-ordered prison population cap (137.5 percent of capacity). The state also houses about 10,800 people in “contract” facilities, including out-of-state private prisons. California contracts for bed space because the prison population cap prevents the CDCR from increasing the level of crowding in state prisons beyond the limit set by the court.
  • The number of adults incarcerated by the state is expected to increase modestly in the coming years, reaching a projected 132,070 by mid-2020. Even as the total number of adults in state custody has declined over the past few years, the number of adults “with relatively long sentences” has continued to grow. The CDCR projects that within the next year, the increase in the number of individuals with relatively long sentences “will outpace population reductions being achieved within the lower-level offender population.”
  • Spending on state corrections remains persistently high. The CDCR is slated to receive $10.5 billion from the state’s General Fund in the current fiscal year (2016-17) — the third consecutive year that state support for the CDCR will exceed $10 billion, after adjusting for inflation. The CDCR’s current share of total General Fund spending — 8.5 percent — is more than twice as high as its share was in 1980-81 (2.9 percent).

These facts suggest that additional reforms are needed in order to further decrease incarceration at the state level and substantially reduce the cost of the state correctional system.

Proposition 57 Would Likely Further Reduce the Number of People Incarcerated by the State

If approved by the voters, Prop. 57 would help to restore California’s momentum in reducing incarceration. By requiring juvenile court judges to decide whether a youth should be tried in adult court, Prop. 57 would likely reduce the number of juveniles who end up in the adult criminal justice system, thereby promoting better outcomes for youth who are sentenced for committing a crime. Moreover, the measure’s new rules regarding parole and sentencing credits could result in many prisoners being released on an accelerated timeline. Experts note that scaling back the length of prison terms is crucial to reducing correctional populations, and that doing so has little to no impact on either crime rates or recidivism. Yet, while Prop. 57 would allow prison terms to be reduced, it would not require state officials to take such a course of action. Therefore, the extent of any decrease in incarceration would depend on how state officials interpret and implement the measure.

Some People Convicted of Nonviolent Offenses Could Be Released From Prison More Quickly Due to the New Parole Consideration Process

Prop. 57 would require the state parole board to conduct parole consideration hearings for prisoners who were convicted of a nonviolent felony offense and who have completed the full term for their primary offense. In other words, individuals would be considered for release from prison prior to serving time for other offenses and/or for any sentencing enhancements that may have been added to their base term. This new parole consideration process would apply to roughly 30,000 current prisoners as well as to about 7,500 of the individuals who are expected to enter state prison each year, according to the LAO.

Yet, although the parole board would have to conduct potentially thousands of additional parole consideration hearings, board commissioners — who are appointed by the Governor — would not be required to grant early release to any state prisoners who would be affected by Prop. 57. Decisions about which prisoners to release presumably would adhere to the parole board’s current guidelines, under which commissioners determine if an individual poses “a current, unreasonable risk” of danger to the public. Still, it is likely that some people affected by Prop. 57 would be found to meet these guidelines and thus would be released from prison earlier than their full sentence requires.

Some People Could Be Released From Prison More Quickly Due to the CDCR’s New Authority to Award Sentencing Credits

Prop. 57 would give state corrections officials broad new discretion to award sentencing credits for good conduct and rehabilitative or educational achievements in order to reduce the amount of time that people spend in prison. The CDCR could award more credits than currently allowed and/or provide credits to prisoners who are otherwise prohibited from earning credits. For example:

  • State law generally allows eligible prisoners to earn one day of credit for each discipline-free day that they serve. Under Prop. 57, state corrections officials could — but would not have to — provide additional credits for each day of good behavior.
  • State law also allows eligible prisoners to earn credits for successfully completing rehabilitative programs. However, these “milestone” credits may reduce a prisoner’s sentence by no more than six weeks in a 12-month period. Under Prop. 57, state corrections officials could — but would not have to — lift this six-week limitation and allow individuals who earn sufficient milestone credits to further reduce their prison terms within a 12-month period.
  • State law prohibits some prisoners, including those convicted of specified violent offenses, from earning credits for completing rehabilitative programs. Under Prop. 57, the CDCR could — but would not be required to — allow these individuals to earn credits for participating in rehabilitative programs, thereby reducing the length of their terms and increasing the chances that they will be able to successfully integrate back into their communities when they are released.

Because the CDCR is part of the Governor’s administration, Governor Brown and his successors would ultimately determine whether, or by how much, to increase the amount of credits that state prisoners could earn for good conduct and/or for completing rehabilitative activities. If voters approve Prop. 57, Governor Brown could implement expansive new credit-earning opportunities aimed at promoting rehabilitation and substantially reducing the state prison population. Alternatively, he could take a more limited approach that only modestly increases credits beyond the levels already provided. Moreover, whatever decisions Governor Brown makes could be maintained, modified, or rescinded by subsequent governors.

Proposition 57 Would Likely Generate Annual State Savings

The various provisions of Prop. 57 are expected to result in state budget savings. The LAO projects that net state savings would likely be “in the tens of millions of dollars annually,” while also acknowledging that their estimates “are subject to significant uncertainty.” Most of these savings are attributed to the provisions of Prop. 57 that apply to adults in state prison: the new parole consideration process and the new authority for state corrections officials to award sentencing credits. However, it is not known how state officials would interpret and implement Prop. 57’s new options for reducing incarceration. Therefore, annual state savings could be higher or lower than the LAO projects.

What Do Proponents Argue?

Proponents of Prop. 57, including Governor Brown and the Chief Probation Officers of California, argue that the measure focuses “resources on keeping dangerous criminals behind bars, while rehabilitating juvenile and adult inmates and saving tens of millions of taxpayer dollars.” They further argue that “without a common sense, long-term solution, we will continue to waste billions and risk a court-ordered release of dangerous prisoners.”

What Do Opponents Argue?

Opponents of Prop. 57, including the San Francisco Police Officers Association and the California District Attorneys Association, argue that the measure will allow “state government bureaucrats to reduce many sentences for ‘good behavior,’ even for inmates convicted of murder, rape, child molestation, and human trafficking.” Prop. 57, they argue, “will likely result in higher crime rates as at least 16,000 dangerous criminals…would be eligible for early release.”

Conclusion

Prop. 57 would provide California officials with new policy tools to address ongoing overcrowding in state prisons. Under the measure, thousands of individuals who were convicted of a nonviolent felony offense would go before the state parole board each year to be considered for release from prison prior to serving their complete sentence. In addition, state corrections officials would gain broad new authority to award sentencing credits in order to reduce the amount of time that people spend in prison. Finally, Prop. 57 would require juvenile court judges to decide whether youth should be tried in adult court. This change would likely reduce the number of juveniles who end up in the adult criminal justice system, thereby promoting better outcomes for youth who are sentenced for committing a crime.

Prop. 57 would not reform California’s complex and often draconian Penal Code, which continues to overly rely on incarceration as the consequence for committing a crime, rather than promoting community-based interventions that could provide better avenues for rehabilitation. Consequently, the measure would not directly reduce the number of people who are sentenced to prison in the first place. However, Prop. 57 would provide new opportunities for state officials to mitigate the impact of California’s sentencing laws by accelerating the release of individuals who merit such consideration, particularly where doing so would promote rehabilitation, public safety, and the cost-effective use of limited public resources. Yet, while Prop. 57 would allow prison terms to be reduced, it would not require state officials to take such a course of action. Therefore, the extent of any decrease in incarceration would depend on how state officials interpret and implement the measure.

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