Inmate numbers drop to 30year low as laws evolve
California’s prison population of 99,000 is its lowest since 1990 and 74,000 below its peak in 2006. Court rulings, new state laws and policies on imprisonment, and changes in voters’ attitudes have all contributed to the reduction, which has not led to any statewide increase in crime.
But the events look somewhat different through a
Three strikes “created this oneway ratchet of longer and longer sentences.”
Michael Romano, Stanford law professor
broader historical lens. In 1976, the state’s prison population was 20,000, and the crime rate was only slightly higher than it is today.
What followed were decades of lockup laws, ballot measures — notably the “three strikes” initiative of 1994 — and policies by a series of governors, starting with Jerry Brown, whose more recent actions were crucial to the state’s turnaround.
The surge in incarceration drove California to open 22 new prisons between 1984 and 2013, bringing the total to 35. Gov. Gavin Newsom has announced plans to close two prisons in the next three years.
“California was at the forefront of both the prison building boom and toughoncrime sentencing,” said Michael Romano, who teaches law at Stanford, directs the law school’s Three Strikes Project, and has been appointed by Newsom to head a committee examining possible further rollbacks in the state’s sentencing laws. “To this day, people are serving life sentences for shoplifting batteries, stealing a kid’s bike, possession of drugs.”
When Brown first took office in 1975, prison sentences in California were largely controlled by the parole board — a felony was punishable by 1 to 5 years in prison, 5 to 10, or 7 to life, for example — and the board decided when an inmate was suitable for release, based on the inmate’s record and prison conduct.
The system, in effect since 1917, had become unpopular on both sides of the aisle. Conservatives said inmates convicted of serious crimes were released too early, while many liberals said the parole board was biased against minorities and the poor.
In 1976, with bipartisan support, Brown signed a “determinate sentencing” law that established a range of fixed terms for nearly all crimes — two, four or six years, for example — and let the judge choose the sentence. The inmate could get time off for good behavior in prison, but, except for some convicted murderers and a few other categories, would never see a parole board.
While the new system made sentences more uniform, it also invited lawmakers, and voters, to increase punishment. A steady stream of laws over the next three decades made imprisonment mandatory for many crimes and added years to sentences for a defendant’s past convictions, gang affiliation, drug dealing and gun use, expanding fiveyear terms to 20 or 25 years in some cases. Initiatives bearing titles such as the Victims’ Bill of Rights (1982) and the Crime Victims’ Justice Reform Act (1990) limited defendants’ rights to challenge prosecutions and police conduct.
And in 1994, after 12yearold Polly Klaas was kidnapped from her Petaluma home and murdered by a man with a felony record, state lawmakers and voters passed the nation’s first three strikes law. For defendants with two previous convictions for serious or violent felonies, the law required a sentence of 25 years to life for a new felony conviction, which could include shoplifting in some cases. If the defendant had one prior serious or violent felony conviction, the sentence for a new felony would be doubled.
The sentencing overhaul “was wellmeaning and there was some rationale in trying to create equity among sentences and avoid disparities, particularly racial disparities,” said Stanford’s Romano, whose panel is scheduled to make its proposals to Newsom in January. “But it created this oneway ratchet of longer and longer sentences.”
Unsurprisingly, California’s prison population soared, exceeding 100,000 in 1990 and topping out at 173,000 in 2006.
Brown, while serving as mayor of Oakland in 2003, told a Los Angeles Times reporter that determinate sentencing had been an “abysmal failure.”
The pushback began in the early 1990s, when prisoners filed classaction suits over prison health care and treatment of disabled and mentally ill inmates. Federal judges initially ordered improvements in the care systems, but saw little progress in prisons with too many inmates and too few resources.
In 2005, a federal judge in San Francisco ordered the state to transfer prison health care management to a courtappointed receiver, saying shoddy care was killing more than one inmate per day. Although the state had reduced its prison population after Gov. Arnold Schwarzenegger declared an emergency, in 2009 a threejudge panel, citing ongoing health care deficiencies, ordered California to lower imprisonment by an additional 40,000, to 137.5% of designed capacity — an order upheld by the U.S. Supreme Court in 2011.
Brown, after being elected to his third term as governor in 2010, responded to the court order with a legislatively approved plan to sentence thousands of lowerlevel felons to county jails instead of state prisons, an approach titled “realignment” that lowered the prison population without reducing sentences.
But the governor also supported some rollbacks in sentencing laws, and three measures have won approval from voters:
■ Proposition 36 of 2012, which narrowed the three strikes law by imposing a 25tolife sentence only if the third felony was serious or violent.
■ Prop. 47 of 2014, which reduced nonviolent, smallscale property thefts and drug crimes from felonies to misdemeanors.
■ Prop. 57 of 2016, a Brown-sponsored measure that allowed the parole board to consider releasing inmates who were convicted of nonviolent felonies and have completed their sentences for those crimes, before serving additional years for past convictions and other increases tacked on by post1976 sentencing laws.
Those measures showed that “the people were way ahead of the politicians in focusing on rehabilitation and in ending mass incarceration,” said Donald Specter, executive director of the nonprofit Prison Law Office, which represents inmates in the health care case.
That assessment will be tested in November when voters will consider Prop. 20, an initiative sponsored by prosecutors and police groups that would repeal many of the sentencing changes in Prop. 47.
The final factor in the recent reduction in imprisonment was the coronavirus pandemic. With infections soaring in stillcrowded penal institutions and heightened by a bungled transfer of infected prisoners to San Quentin, Newsom has temporarily halted transfer of newly sentenced inmates from county jail to state prison and ordered early releases that have reduced inmate totals statewide by 8,000.
Despite the changes, California prisons are still more than 16% above their designed capacity of 89,663, according to state officials. Further reductions would require further changes in sentencing and treatment of certain categories of inmates — for example, the mentally ill.
“Are we ready to say that people with serious mental illness and health problems should be cared for in society?” asked Michael Bien, a lawyer for mentally ill inmates who initially sued the state over their treatment in 1990.
Oakland attorney Lenore Anderson, a coauthor of Prop. 47, is founder and president of Californians for Safety and Justice, a nonprofit advocating for reductions in imprisonment. She said it’s time for California to take another look at the lengthy confinement its laws has imposed, even for inmates convicted of serious crimes, when they no longer pose a threat after decades behind bars. And she said state lawmakers and the public appear to be ready to overhaul the system.
“California was one of the early states in ushering in the toughoncrime era ... (but) I think we’ve seen a major shift in public opinion” in favor of treatment and crime prevention, Anderson said.
“If there’s no public safety benefit to sentences of 20 or 30 years long, we ought to reconsider them. If someone is no longer a danger, we ought to release them.”