In Cal­i­for­nia, le­niency’s un­in­tended e≠ects

A new law to re­duce prison crowd­ing keeps one ad­dict out of jail but not out of trou­ble

The Washington Post Sunday - - FRONT PAGE - BY ELI SASLOW IN SAN DIEGO

They gath­ered out­side the court­house in Novem­ber for a cel­e­bra­tion on Elec­tion Day, dozens of peo­ple wear­ing fake hand­cuffs and car­ry­ing hand­writ­ten signs. “End mass in­car­cer­a­tion!” read one. “Jus­tice not jail” read another. Cal­i­for­nia vot­ers had just ap­proved a his­toric mea­sure that would re­duce pun­ish­ments for more than 1 mil­lion non­vi­o­lent of­fend­ers, most of whom had been ar­rested on drug charges. “No more drug war,” peo­ple chanted that night, as the vote be­came of­fi­cial.

The new law, called Propo­si­tion 47, was in­tended to re­duce crowd­ing in the state’s over­whelmed pris­ons, save money and treat low-level crim­i­nals with more com­pas­sion, and in­side the court­house that day was one of its first tests: James Lewis Raben­berg, 36, a home­less res­i­dent of San Diego. He had been found in pos­ses­sion of a small amount of metham­phetamine at a lo­cal park, a crime that had been con­sid­ered a felony on the morn­ing of his Nov. 4 sen­tenc­ing hear­ing but by night­fall would be re­clas­si­fied to a mis­de­meanor. In­stead of fac­ing more than a year in jail or in a residential drug treat­ment pro­gram, Raben­berg de­layed his sen­tenc­ing so he would be look­ing at the prospect of a small fine, some pro­ba­tion and his im­me­di­ate re­lease.

“The ideal ex­am­ple of a Prop 47 case ,” a public de­fender had writ­ten

a mo­tion to de­lay sen­tenc­ing, be­cause Raben­berg had no history of vi­o­lence and had never been con­victed of selling drugs. He had moved to Cal­i­for­nia a decade ear­lier from Illi­nois, lost his job in con­struc­tion, be­come ad­dicted to meth, lost his house and then been caught sev­eral times with drugs. He was sick and some­times try­ing to get bet­ter, and a few­months ear­lier he had posted a mes­sage on his Face­book page. “Sav­ing money, work­ing, go­ing to meet­ings, clean over 100 days and feel­ing good,” he had writ­ten. “Time for James to do James.”

The new con­sen­sus in Cal­i­for­nia and be­yond was that it was the role of the crim­i­nal jus­tice sys­tem to give him that chance.

“This is about putting com­pas­sion first,” San Diego’s re­cently re­tired po­lice chief said when Prop 47 passed. “We can­not solve crime by ware­hous­ing peo­ple.”

“Re­leas­ing some non­vi­o­lent of­fend­ers is the smart thing to do,” said Newt Gin­grich, a 2012 GOP pres­i­den­tial can­di­date, ex­plain­ing the con­ser­va­tive per­spec­tive.

“We can­not in­car­cer­ate our way out of a drug prob­lem,” said Sen. Rand Paul (R-Ky.), ex­plain­ing the lib­er­tar­ian per­spec­tive.

“It is abun­dantly clear that Amer­ica needs a new strat­egy,” Pres­i­dent Obama had said, in a speech about the fail­ures of mass in­car­cer­a­tion, and now Cal­i­for­nia was be­gin­ning the coun­try’s largest experiment yet as the judge de­cided Raben­berg’s sen­tence.

A $700 fine and three years pro­ba­tion, the judge an­nounced at Raben­berg’s resched­uled hear­ing in early De­cem­ber.

“You’re free to go, Mr. Raben­berg,” he said. “Please con­sider this an op­por­tu­nity. Good luck. I hope we don’t see each other again.”

Off came the county-is­sued jump­suit, off came the hand­cuffs and out Raben­berg went into a state where so many other peo­ple were be­ing granted new op­por­tu­ni­ties, too. In the 11 months since the pas­sage of Prop 47, more than 4,300 state pris­on­ers have been re­sen­tenced and then re­leased. Drug ar­rests in Los An­ge­les County have dropped by a third. Jail book­ings are down by a quar­ter. Hun­dreds of thou­sands of ex-felons have ap­plied to get their pre­vi­ous drug con­vic­tions re­vised or erased.

But along with the suc­cesses have come other con­se­quences, which po­lice de­part­ments and pros­e­cu­tors re­fer to as the “un­in­tended ef­fects”: Rob­beries up 23 per­cent in San Fran­cisco. Prop­erty theft up 11 per­cent in Los An­ge­les. Cer­tain cat­e­gories of crime ris­ing 20 per­cent in Lake Ta­hoe, 36 per­cent in La Mi­rada, 22 per­cent in Chico and 68 per­cent in Desert Hot Springs.

It’s too early to know how much crime can be at­trib­uted to Prop 47, po­lice chiefs cau­tion, but what they do know is that in­stead of ar­rest­ing crim­i­nals and re­mov­ing them from the streets, their of­fi­cers have been deal­ing with the same of­fend­ers again and again. Caught in pos­ses­sion of drugs? That usu­ally means a mis­de­meanor ci­ta­tion un­der Prop 47, or es­sen­tially a ticket. Caught steal­ing some­thing worth less than $950? That means a ticket, too. Caught us­ing some of that $950 to buy more drugs? Another ci­ta­tion.

“It’s a slap on the wrist the first time and the third time and the 30th time, so it’s a vir­tual get-out-of-jail-free card,” said Shel­ley Zim­mer­man, who be­came San Diego’s po­lice chief in March 2014. “We’re catch­ing and re­leas­ing the same peo­ple over and over.”

Of­fi­cers have be­gun call­ing those peo­ple “fre­quent fliers,” of­fend­ers who knew the specifics of Prop 47 and how to use it to their ad­van­tage. There was the thief in San Bernardino County who had been caught shoplift­ing with his cal­cu­la­tor, which he said he used to make sure he never stole the equiv­a­lent of $950 or more. There was the “Hoover Heis­ter” in River­side, who was ar­rested for steal­ing vac­uum clean­ers and other ap­pli­ances 13 dif­fer­ent times over the course of three months, each mis­de­meanor charge fol­lowed by his quick re­lease.

There was also the known gang memin ber near Palm Springs who had been caught with a stolen gun val­ued at $625 and then re­acted in­cred­u­lously when the ar­rest­ing of­fi­cer ex­plained that he would not be taken to jail but in­stead writ­ten a ci­ta­tion. “But I had a gun. What is wrong with this coun­try?” the of­fender said, ac­cord­ing to the po­lice re­port.

And then, in San Diego, there was Raben­berg, who just weeks af­ter be­ing re­leased be­cause of Prop 47 was caught break­ing the law again.

He was ar­rested for pos­ses­sion of meth on Jan. 2 and re­leased from jail Jan. 3.

He was ar­rested for hav­ing drug para­pher­na­lia on Feb. 6 and is­sued a ci­ta­tion.

He was ar­rested again for hav­ing drugs on Feb. 19. And then again on March 1. And then again on March 8. And then again on April 1.

By April 26, hehad­been ar­rested for six mis­de­meanors in less than four months and been re­leased all six times, so he was free to oc­cupy a ta­ble out­side Star­bucks when a man named Kevin Zempko ar­rived to have cof­fee with his wife. Zempko sat at a ta­ble next to Raben­berg, who was pick­ing apart the seams of his coat and dump­ing the con­tents of his pock­ets onto the ta­ble: some nick­els, two $1 bills, a few scraps of pa­per, a dingy plas­tic cup and a lighter. Zempko watched for a few sec­onds and con­cluded that Raben­berg was prob­a­bly a va­grant and an ad­dict. “I just felt bad for him,” he said.

Raben­berg no­ticed Zempko look­ing his way and be­gan to stare back, mum­bling, ges­tur­ing, stand­ing up and now pulling some­thing new from the pocket of his coat. It was a small wooden steak knife. Ra ben berg slam med it down on the ta­ble. He picked it up again, jabbed at the air and started mov­ing with the knife to­ward Zempko, who stood up and placed a chair be­tween them.

Zempko had been in the Marine Corps for 11 years, trained to rec­og­nize a threat, and he es­caped into the Star­bucks and warned other cus­tomers. The man­ager called the po­lice. Another Star­bucks em­ployee tried to pacify Raben­berg with a free cup of cof­fee. By the time two po­lice of­fi­cers ar­rived, Raben­berg seemed mostly con­fused and tired. “Dis­ori­ented” was how a po­lice re­port de­scribed him. The of­fi­cers hand­cuffed Raben­berg and placed him in the back of their po­lice car.

“What will hap­pen to him?” Zempko asked, be­cause now the threat had passed and what he felt most was con­cern for Raben­berg, even guilt.

“He needs help,” Zempko told the of­fi­cers, and they asked for his phone num­ber and said they would call as part of their in­ves­ti­ga­tion. For a few­days, Zempko waited and won­dered: If they asked him to tes­tify, would he push for le­niency or a strict sen­tence? Which would be bet­ter for the city? Which would be bet­ter for Raben­berg?

But the po­lice never called. The ar­rest had been for pos­ses­sion of drugs and bran­dish­ing a deadly weapon — now mis­de­meanors un­der Prop 47. Raben­berg was booked into jail and re­leased three days later.

“What are we sup­posed to do here?” asked Jan Gold­smith, the San Diego city at­tor­ney. “How do we end this cy­cle?”

He was sit­ting at the con­fer­ence ta­ble in his down­town of­fice, try­ing to solve the prob­lem that had been trou­bling him for months. His staff was in charge of pros­e­cut­ing all mis­de­meanors in San Diego, and now it was deal­ing with dozens of peo­ple like Raben­berg, fre­quent fliers who no longer over­crowded the prison but whose cases con­tin­ued to clog the courts. “How can we change be­hav­ior when they know there’s no real threat of pun­ish­ment, no in­cen­tive?” Gold­smith won­dered.

He had liked many of the the­o­ries be­hind Prop 47: a sys­tem de­signed to be mer­ci­ful, with more em­pha­sis on treat­ment and fewer jail sen­tences. These were ideas he had once pur­sued him­self.

He had served as a judge be­fore be­com­ing the city’s top pros­e­cu­tor, and for a while he had presided over San Diego’s al­ter­na­tive drug court. That was a sys­tem that seemed in­tu­itive to him — a logic he could easily ex­plain to ad­dicts from the bench. Get caught with drugs once and maybe you would only get charged with a mis­de­meanor. But by the sec­ond time, or cer­tainly the third, the charge be­came a felony and most of­fend­ers were faced with a choice: Go to state prison or par­tic­i­pate in drug court, which usu­ally meant at least 18 months of manda­tory drug test­ing, treat­ment and su­per­vi­sion un­der the con­stant threat of prison time. Many chose drug court and en­tered into treat­ment. Sixty per­cent of those who en­rolled grad­u­ated. Seventy per­cent of grad­u­ates stayed out of trou­ble for at least three years.

“I don’t know many ad­dicts who mag­i­cally wake up and say, ‘Hey, I want help,’ ” Gold­smith said. “They have a ter­ri­ble, hor­ri­ble dis­ease. They’re ad­dicted to drugs. Of­ten times, they’re steal­ing to buy those drugs. You need con­se­quences. They don’t get bet­ter on the honor sys­tem. You need to nudge them, shove

“How does it end? There’s no more in­cre­men­tal pun­ish­ment. We let the be­hav­ior con­tinue. We let the prob­lems get worse.”

them, kick them in the door.”

But now more ad­dicts were de­clin­ing drug court, be­cause spend­ing a few days in jail on a mis­de­meanor charge was eas­ier than 18 months of in­ten­sive re­hab. With­out the threat of a felony, there was lit­tle in­cen­tive to get treat­ment. Drug court pro­grams had closed in Fresno and River­side. En­roll­ments had dipped by more than a quar­ter in many places across the state. Raben­berg had been of­fered drug court three times and al­ways de­clined, choos­ing in­stead to plead guilty to a mis­de­meanor. Cal­i­for­nia had promised to use some of the sav­ings gen­er­ated by Prop 47 for drug treat­ment. But that money wouldn’t be avail­able un­til 2016, which to Gold­smith seemed like a long time to wait.

Raben­berg was ar­rested again May 29 with meth while pan­han­dling near Bal­boa Park.

“Frus­trat­ing, frus­trat­ing,” said Zim­mer­man, the po­lice chief, speak­ing not just about Raben­berg but all fre­quent fliers. “Just send­ing our of­fi­cers to deal with prob­lems that never get solved.”

Raben­berg was ar­rested again for drugs July 4.

“We are en­abling this kind of be­hav­ior,” said Bon­nie Du­ma­nis, the dis­trict at­tor­ney for San Diego County.

He was ar­rested again July 29 and Aug. 9.

“Aren’t we lulling him into a sense of se­cu­rity?” Gold­smith said. “How does it end? There’s no more in­cre­men­tal pun­ish­ment. We let the be­hav­ior con­tinue. We let the prob­lems get worse. And all we can do is wait un­til he does some­thing ter­ri­ble, un­til he stabs some­body or kills some­body, and then we can fi­nally take him off the street.”

There was another pos­si­ble out­come for Raben­berg, too — one that was send­ing his mother, Denise Klemz, to visit a psy­chi­a­trist each month in Joliet, Ill., prompt­ing her to hire a pri­vate in­ves­ti­ga­tor, com­pelling her to look up phone num­bers in San Diego for the po­lice sta­tion, shel­ters, hos­pi­tals and the morgue. “Is he dead?” she would some­times ask peo­ple about her son, whom she had been try­ing to lo­cate for more than three years.

“A big­hearted, free-spir­ited type per­son” was how she some­times de­scribed him in those phone calls to San Diego, be­cause for a while af­ter high school his life had been go­ing pretty well. He had gone back­pack­ing through Yel­low­stone Na­tional Park, moved in with a girl­friend and taken a job at the Illi­nois Toll­way. Then he had crashed his car af­ter a party and sent one of his pas­sen­gers through the wind­shield. The pas­sen­ger had sur­vived, barely, but Raben­berg was never the same. He had started regularly us­ing co­caine, Klemz said, and then he caught hep­ati­tis C by shar­ing nee­dles in Chicago.

She had sent him to live with her brother in Cal­i­for­nia in the late 1990s, and that was the last time she had seen him. Her brother had kicked Raben­berg out when he started us­ing meth, and for the past dozen years, Klemz sus­pected that her son had been mostly home­less. He had called her one time, af­ter his grand­mother died, ask­ing her to send money for a bus ticket home. She had of­fered to send him the bus ticket in­stead, be­cause she didn’t trust him with money. “Don’t bother,” he had told her, and they hadn’t spo­ken since.

She had an old cell­phone num­ber for him, and even though she knew the phone had been shut off, she still sent him a text mes­sage ev­ery few­days, just in­case. “Please come home,” she wrote. “I’m sorry.” “Are you safe?” “Start­ing to get cold here. Is it cold there?”

The pri­vate in­ves­ti­ga­tor had taught her how to type Raben­berg’s name into the San Diego jail data­base to see whether he was in cus­tody. A few times she had seen his name in the ar­rest logs and felt some mea­sure of re­lief. Maybe he would be forced to detox. Maybe he would get help. She had called the jail once to in­quire about vis­it­ing him, or writ­ing a let­ter, but by the time she reached a re­cep­tion­ist, she was told that Raben­berg had been re­leased. He had not left an ad­dress or a phone num­ber, so she sent another mes­sage to the num­ber she al­ready had.

“What’s hap­pen­ing to you?” she had writ­ten.

NJan Gold­smith, San Diego city at­tor­ney

o one knew, and un­der Prop 47, no­body had a com­pelling rea­son to find out. The re­al­ity was that no one was re­ally look­ing for Raben­berg at all, ex­cept for three non­profit work­ers who had re­cently be­gun driv­ing loops through the sprawl­ing parks and home­less en­camp­ments of San Diego.

Their salaries were be­ing funded in part by a down­town busi­ness as­so­ci­a­tion to ad­dress prob­lems cre­ated by the home­less pop­u­la­tion, which had in­creased no­tice­ably since the pas­sage of Prop 47. More than 1,200 fewer peo­ple were in the lo­cal jail each night. Mean­while the num­ber of un­shel­tered home­less peo­ple in down­town San Diego had grown 24 per­cent based on the city’s latest count, and more than 8,000 home­less peo­ple stayed in the city on any given night. The city es­ti­mated that a third of those peo­ple were chronic sub­stance abusers. Emer­gency room vis­its for drug over doses had be­gun to tick up. As­sault son po­lice of­fi­cers had risen by more than half in precincts with high home­less pop­u­la­tions. So lo­cal busi­nesses had pooled to­gether $50,000 to hire three out­reach work­ers, all for­merly home­less them­selves, to deal with the prob­lems of fre­quent fliers in a sys­tem that no longer could.

They pa­trolled the neigh­bor­hood in a van painted with the slo­gan“Where Mir­a­cles Hap­pen” and moved drug users away from busi­nesses and back into the hid­den canyons of Bal­boa Park. They of­fered rides and free food to ad­dicts who were loi­ter­ing or ha­rass­ing cus­tomers out­side the 7-Eleven.

“We used to call the po­lice, but they don’t want to waste all their time writ­ing tick­ets,” said Larissa Wim­berly, one of the out­reach work­ers. “We just try to han­dle it.”

They had built re­la­tion­ships with many of the home­less peo­ple, and they knew about Raben­berg, too. He had filled out one of their en­roll­ment forms a while back, ask­ing for help, and he had even checked him­self into a treat­ment fa­cil­ity once be­fore bail­ing af­ter three days. Now they some­times saw him strag­gling around the Hill­crest neigh­bor­hood, al­ways in the same jeans and sweat­shirt, or stay­ing in a tent be­hind the man­i­cured lawn bowl­ing fa­cil­ity in Bal­boa Park. “A reg­u­lar,” they called him, and on this day they saw many of their reg­u­lars, who they re­ferred to by nick­names.

There was Dead Leg limp­ing up the side­walk, and Cry Baby com­plain­ing about the heat, and Dol­lar Man pan­han­dling at the Star­bucks. The van stopped at a ma­jor in­ter­sec­tion where some home­less men were push­ing along shop­ping carts in the mid­dle of busy roads. “You can’t be do­ing this stuff right here,” Wim­berly told them, sus­pect­ing that they were high. Af­ter that, the work­ers re­sponded to a call about an “ag­gres­sive pan­han­dler” at a lo­cal craft mar­ket. “You’re scar­ing these peo­ple,” Wim­berly told the man.

They drove seven loops through down­town un­til it started to get dark. They saw dozens of tents scat­tered in the un­in­cor­po­rated canyons, too far from any road to ap­proach. They passed an en­camp­ment of 200 peo­ple near the free­way, a group so no­to­ri­ous for theft and drug use that po­lice had warned out­reach work­ers not to visit. Some peo­ple didn’t want help, Wim­berly said. Oth­ers were be­yond it. They drove back down­town as their shift ended.

“All we can do is deal with peo­ple who want our help or peo­ple who are caus­ing prob­lems,” Wim­berly said, and on this day, at least, Raben­berg was nei­ther of those.

On Aug. 14, he was ar­rested for fail­ing to ap­pear in court on two drug charges. He was re­leased Aug. 18. On Aug. 28, he was ar­rested for pos­ses­sion of meth and then re­leased Sept. 1.

On Sept. 19, he was due to ap­pear in court for a hear­ing on three of his cases. A note on his file read, “Enough!” be­cause Raben­berg had now been ar­rested 13 times.

He had failed to ap­pear in court seven times. He had threat­ened the public safety. He had en­dan­gered his own health. “Who ex­actly is ben­e­fit­ing here?” said Gold­smith, the city at­tor­ney, who hoped that the judge would com­pile Raben­berg’s mis­de­meanors into one sen­tence and force him into an ex­tended jail term or at least drug treat­ment.

Now the clerk called the court­room to or­der. Lawyers wheeled in carts of al­pha­bet­ized files. The judge an­nounced the be­gin­ning of another busy docket in the era of Prop 47.

“Mr. Raben­berg,” the judge said, call­ing out the next case. “Mr. Raben­berg,” he said again. “Where is Mr. Raben­berg?” the judge asked, fi­nally, but wher­ever Raben­berg was, he wasn’t here.

PHOTOS BY JAHI CHIKWENDIU/THE WASHINGTON POST

TOP: Kevin Zempko was sit­ting near James Raben­berg out­side this Star­bucks on April 26 when the home­less man be­came ag­i­tated, pulled a small knife from his pocket and started mov­ing to­ward Zempko, who was able to avert the threat. Af­ter po­lice ar­rested a “dis­ori­ented” Raben­berg, he was booked into jail and re­leased three days later. ABOVE: San Diego City At­tor­ney Jan Gold­smith’s of­fice is in charge of pros­e­cut­ing all mis­de­meanors in the city, in­clud­ing Propo­si­tion 47 cases.

March 8 Raben­berg was ar­rested on a drug charge in the 1900 block of Adams Street.

April 1 Raben­berg was ar­rested in the early evening in the 400 block of Cedar Street.

Feb. 6 James Raben­berg was ar­rested for pos­sess­ing drug para­pher­na­lia near 4040 30th St.

Feb. 19 Raben­berg was ar­rested on a drug charge near the 2500 block of Al­ba­tross Street.

UN­WIND­ING THE DRUG WAR This is the sixth ar­ti­cle in a con­tin­u­ing se­ries about the legacy of the war on drugs and ef­forts to re­duce the na­tion’s prison pop­u­la­tion.

PHOTOS BY JAHI CHIKWENDIU/THE WASHINGTON POST

TOP: The view from a van car­ry­ing three out­reach work­ers as it passes sev­eral home­less peo­ple on a cor­ner in San Diego. Lo­cal busi­nesses had pooled $50,000 to hire the three work­ers to deal with is­sues con­cern­ing the home­less pop­u­la­tion, which has grown since the pas­sage of Propo­si­tion 47. ABOVE: Larissa Wim­berly, one of the out­reach work­ers, fills out a form for Paul Gas­ton. “All we can do is deal with peo­ple who want our help or peo­ple who are caus­ing prob­lems,” she says.

Aug. 9 Raben­berg had drugs im­pounded dur­ing his ar­rest in an al­ley west of Louisiana Street.

Aug. 28 Raben­berg was ar­rested for pos­ses­sion of meth in the 3900 block of Texas Street.

May 29 Raben­berg was ar­rested on a meth charge near Univer­sity Av­enue at Park Boule­vard.

July 4 Raben­berg was ar­rested for drug pos­ses­sion in an al­ley east of Illi­nois Street.

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