Proposition 5 – Fiscal Sanity and Real Criminal Justice Reform: Fighting Fear With Facts

[NOTE:  Of all our ballot explanations this one is the longest, the rest are a lot shorter and more concise.  At the time we we wrote about Prop. 5, there was not a lot of good information about it.  If you are heading out to the polls now and want a quick explanation - you can read the first five short paragraphs and get the gist of the argument  For an opposing view click here:  For a brief discussion of whether Prop. 5 lets "meth dealers out of jail" click here].

you ‘ll get the gist after the first few parag because there was the least amount of information

Known as the Non-Violent Offenders Rehabilitation Act (“NORA”), Prop. 5 asks voters to approve comprehensive reforms to the state’s sentencing and parole laws for nonviolent drug possession offenses. At it’s core, this new law mandates that non-violent drug offenders be diverted to drug treatment programs rather than prison. To understand Prop. 5, it’s helpful to understand California’s prison funding crisis and current budget dilemmas.

Even if California manages to find enough spare change in the couch to pay this year’s bills, the state still has no solution to the $8 billion budget shortfall we will face in July ’09, a shortfall that will grow to $18 billion in 2010.

Making matters worse, the federal government ordered California to spend $8 billion in upgrading the state’s prison health care system (California inmates receive such inadequate health care that a panel of federal judges found it to be unconstitutional “cruel and unusual punishment”). The first $3 billion must be paid by next summer.

Where is this money coming from? AG Jerry Brown tells the LA Times “you may take it from children, you may take it from the mentally ill, you may take it from the elderly.” Keep in mind that prison spending increased 52% from 2002 to 2007, yet the Department of Corrections has still been unable to address the prison health care issue and California’s prisons are currently at 200% capacity.

How bad is it? According to bi-partisan, state-funded Little Hoover Commission report, which conducted a study on the prison problems:

California’s correctional system is in a tailspin that threatens public safety and raises the risk of fiscal disaster. The failing correctional system is the largest and most immediate crisis facing policy-makers. For decades, governors and lawmakers fearful of appearing soft on crime have failed to muster the political will to address the looming crisis. And now their time has run out.

A lot of these problems stem from California’s nasty habit of enacting criminal justice laws at the ballot box. Decades of harsh sentencing laws and creating new categories of crimes, which have done nothing to combat crime, in some cases may be increasing crime, and do not focus on rehabilitation or inmate re-entry programs. Worse, these initiatives never provided for funding sources from other than the state general fund.

The light at the end of the tunnel is Prop. 5, a ballot measure which, if passed, actually has a shot at addressing the prison crisis in a way that is fiscally responsible without compromising public safety.

If this sounds like a ballot measure you’ve seen before, it’s because you have. In 2000, California voters approved Prop. 36, which also diverted non-violent drug offenders to drug treatment programs rather than prison. Prop. 5 expands Prop. 36 by allowing a wider range of drug offenders to qualify for drug treatment programs and institutes a 3 tiered, graduated-system of sanctions, the ultimate sanction being jail, for offenders who don’t comply.

I was suspicious of Proposition 5 at first. At first glance, it comes off as a well-intentioned-but- tough-to-implement reform proposal that could potentially create more problems than it solves.

Turns out I was wrong. The arguments against Prop. 5 are wildly misleading; they’re not based in any independent facts or research, and most importantly, their claims are not an accurate statement of the proposed law. The opposition arguments are just plain’ ol fear mongering concocted by the law enforcement business lobby. Contrast this with the arguments to vote for Prop. 5, which are based on the recommendations of Gov. Schwarzenegger’s special adviser on crime issues and the findings of two bi-partisan, state funded research projects: the Little Hoover Commission report and the UCLA Integrated Substance Abuse Program.

There are some principled, but ultimately unconvincing arguments against Prop. 5 which have to do with drug courts and parole reform; I’ll address those in future posts. But first, I need to take on the big-lies that are perpetuated by the comically titled “FACTS” page of the No-On-5 website.

It’s clear that the No-On-5 folks exploit one of the many flaws of California’s ballot initiative process: Most people vote without reading the proposed laws. When not misrepresenting or fabricating the law, the No-On-5 arguments resort to empty, hot-button rhetoric. Let’s go through their claims one at a time:

CLAIM:Proposition 5 spending will continue forever, and can only be restricted by a future multi-million dollar voter initiative campaign. The Governor and Legislature cannot adjust Prop 5 funding, even in times of budget shortfall or state crisis.

This is as disingenuous as it gets. It is true that Prop. 5 is only amendable by voter initiative, but so are the decades of ineffective “tough-on-crime” laws that got us into this mess, all of which were supported by the No-On-5 interests. Prop. 5 is the voter initiative to start undoing those mistakes.

CLAIM: Proposition 5 falsely claims that it will save money, but in fact, costs will be shifted from the state to the counties, which may be forced to raise taxes.

Keeping in mind that Prop. 5 is an expansion of Prop. 36, let’s first look at the cost savings of Prop. 36. According to the UCLA study, under Prop. 36 California enjoys “a benefit-cost ratio of nearly 2.5 to 1, meaning that approximately $2.50 was saved for every $1 allocated” to fund Prop. 36 drug treatment programs.” Under Prop. 5, this savings will only multiply.

According to the non-partisan Legislative Analyst’s Office, here’s how the Prop. 5 spending and savings work:

* If Prop. 5 passes, we would release 18,000 non-violent drug offender inmates into community drug treatment programs and would divert all new non-violent drug offenders into community drug treatment, this would mean an off-the-bat savings of $2.5 billion in prison funding.

* The State would spend $500 million annually on the implantation and supervision of these drug treatment programs. However, the state would save $1 billion dollars a year in prison costs.

* Bottom line: Off the bat, we spend $500 million to save $3.5 billion. In future years, we spend $500 million to save $1 billion every year.

What about the claim that “counties may be forced to raise taxes”? I could find no analysis to provide basis for this claim other than the claim itself on the No-On-5 website.

CLAIM: Proposition 5 sets up two new bureaucracies with no accountability, at a cost of hundreds of millions.

On one hand, the No-On-5 groups complain that Prop. 36 is ineffective because there’s no oversight, on the other hand they complain that Prop. 5 sets up “two new bureaucracies with no accountability.”

Prop. 5 adds a Department of Rehabilitation to the already existing Department of Corrections with appropriate staffing at each state prison and at the county level to oversee Prop. 5 programs, by my count, the law calls for less than 75 new employees added to the state payrolls. The funding for these positions is part of the overall Prop. 5 expenditure. There’s no hidden costs.

CLAIM: “Proposition 5 is strongly opposed by Mothers Against Drunk Driving (MADD) because it provides a way for those who kill or maim others while under the influence to avoid criminal prosecution.”

This is flat-out not true. The only people eligible for Prop. 5 diversion are for those who are ONLY charged with non-violent drug possession offenses. If you kill or injure someone while DUI, you’ll be charged with Vehicular Manslaughter or DUI With Injury; that bag of meth the cops found on you when they arrested you does not allow you to run into court and beg for Prop. 5 diversion instead of prison. The proposed law plainly says that if “the defendant is charged with any other offense that is not a nonviolent drug possession offense”, then Prop. 5 is not available. Obviously, Vehicular Manslaughter or DUI with Injury is not a “nonviolent drug possession offense.”

Also, there’s nothing in Prop. 5 that changes existing DUI laws, so even with no-injury DUIs, Prop. 5 is not available.

CLAIM: “Proposition 5 could provide, in effect, a “get-out-of-jail-free” card to defendants charged with crimes e.g. domestic violence, child abuse, mortgage fraud, identity theft, vehicular manslaughter, insurance fraud and auto theft, letting them effectively escape criminal prosecution altogether. If a violent offender is granted a hearing using “the drugs made me do it” defense, the burden of proof shifts to the prosecution to prove that the defendant should be held responsible for his or her crimes.”

For starters, if a defendant raises a Prop. 5 defense, the new law does not “shift the burden of proof to prove the defendant should be held responsible for his or her crimes”, the due process clause of the 5th and 14th Amendments to the U.S. Constitution demand that the burden be shifted to the prosecution — it’s that whole “state’s burden of proof beyond a reasonable doubt” thing that our entire criminal justice system is based on. I know, that damn constitution is always ruining everyone’s fun.

Second, remember that Prop. 5 only covers “non-violent drug possession offense.” The law specifically defines “non-violent drug possession offense” as “the unlawful, personal use, possession for personal use, or transportation for personal use or being under the influence of any controlled substance…” Obviously, none of the crimes listed above fall into that category.

What’s most outrageous is how they slipped MORTGAGE FRAUD in there. Haven’t people who’ve lost their homes been through enough? Do they really need the No-On-5 crowd tricking them into believing that their shady mortgage broker is gonna walk with an “it-was-the-drugs-I-need-help” defense? Geez.

CLAIM: “Under Proposition 5, someone who commits felonies – even violent felonies – and claims “the drugs made me do it” will be referred to country-club like drug centers, not jail or prison. These criminals will receive better medical-care than many hard-working Californians – costing taxpayers millions.”

Another piece of spin. People who have been convicted of violent felonies earlier in their lives are eligible for Prop. 5 only if 1) the defendant has been out of prison for five years and 2) Since the defendant has been out of prison, he/she hasn’t been convicted of anything other than the non-violent drug possession offense. This includes all felonies (whether violent or not) and all violent misdemeanors. Also, these defendants don’t get the “graduated approach” that others do, if these defendants don’t successfully complete diversion, they don’t even get to go to the “most restrictive” option, they go to jail.

As for the “country-club like drug centers” and Prop. 5ers receiving “better medical-care than many hardworking Californians-costing taxpayers millions”, I have faith in my fellow Californians see this kind of rhetoric as the Nixonland nonsense that it is. The bottom line is that we have a choice: Fund $8 billion in prison upgrades by taking money from programs for children and the elderly or vote for a self-funded program that takes a big step towards solving the prison crisis and saves the state billions of dollars over the coming years.

The Johnny California Editorial Board Recommends a YES Vote on Proposition 5.

Related Post: The Prop. 5 $50,000 Meth Myth versus 1 Kilogram of Facts