January 30, 2014
Pursuant to Elections Code Section 9005, we have reviewed the
proposed statutory initiative related to criminal penalties and
resentencing for individuals convicted of certain crimes (A.G. File No.
13-0060).
Background
Sentencing law generally defines three types of crimes: felonies,
misdemeanors, and infractions. A felony is the most serious type of
crime. Existing law classifies some felonies as “violent” or “serious,”
or both. Examples of felonies currently defined as violent include
murder, robbery, and rape. While almost all violent felonies are also
considered serious, other felonies are defined only as serious, such as
assault with intent to commit robbery. Felonies that are not classified
as violent or serious include grand theft (not involving a firearm) and
possession of a controlled substance. A misdemeanor is a less serious
offense. Misdemeanors include crimes such as assault, petty theft, and
public drunkenness. An infraction is the least serious offense and is
generally punishable by a fine.
Felony Sentencing. Offenders convicted of
felonies can be sentenced as follows:
- County Jail. Felony offenders who have
no prior or current convictions for serious, violent, or sex
offenses are generally sentenced to county jail. Courts may sentence
such offenders to spend their entire sentence in county jail.
Alternatively, courts may require such offenders to spend a portion
of their sentence in jail and a portion of their sentence in the
community under supervision of a county probation officer. Offenders
who violate the terms of their community supervision are typically
returned to county jail.
- State Prison. Felony offenders who are
ineligible for county jail because of their criminal history are
sentenced to state prison. Upon release from prison, offenders with
a current serious or violent offense are supervised in the community
by state parole agents. The remainder of offenders are generally
supervised by county probation departments. Offenders who violate
the terms of their supervision are typically placed in county jail.
- Felony Probation. Instead of
sentencing felony offenders to county jail or state prison, a court
may place an offender on felony probation under the supervision of a
county probation officer, depending on the offender’s criminal
history. Offenders who violate the terms of their community
supervision could be subject to the felony sentence that they would
have otherwise received, such as being sentenced to state prison.
Misdemeanor Sentencing. Under current law,
offenders convicted of misdemeanors may be sentenced to county jail,
misdemeanor probation, a fine, or some combination of the three.
Offenders placed on misdemeanor probation are supervised in the
community by a county probation officer and may be placed in jail if
they violate the terms of their community supervision.
California law also gives law enforcement and prosecutors the
discretion to charge certain crimes as either a felony or a misdemeanor.
These crimes are known as “wobblers.” The sentencing decision on
wobblers is left to the court, with the court’s decision generally based
on the specific circumstances of the crime and the criminal history of
the offender.
Proposal
Changes to Existing Penalties. This measure
reclassifies certain non-violent property and drug offenses that are
currently wobblers or felonies to misdemeanors with a maximum penalty of
less than one year in county jail. The measure limits eligibility for
these reduced sentences to offenders who have not committed certain
severe crimes specified in the measure—including murder and certain sex
and gun felonies. Specifically, the measure changes the penalties for
the following crimes:
- Petty Theft. Under current law, theft
of money or property between $50 and $950 (referred to as petty
theft) is generally a misdemeanor. However, under certain
circumstances such a crime can be charged as a felony. For example,
this can occur if the crime involves the theft of certain property
(such as firearms or automobiles) or if the defendant served time in
prison or jail as a result of (1) three or more prior convictions
for certain theft-related crimes or (2) a prior conviction for one
of these crimes and a serious, violent, or sex offense. Under this
measure, petty theft would be a mandatory misdemeanor. However, the
measure creates some exceptions under which certain offenders could
still be eligible for felony charges, depending on their criminal
history
- Shoplifting. Under current law,
shoplifting property under $950 is generally a misdemeanor crime.
However, such crimes can also be charged as burglary, which is a
felony. Under this measure, shoplifting property under $950 would
become a mandatory misdemeanor and could not be charged as burglary.
- Receiving Stolen Property. Under
current law, individuals found in possession of stolen property may
be charged with receiving stolen property, which is a wobbler crime.
Under this measure, receiving stolen property under $950 would
become a mandatory misdemeanor.
- Writing Bad Checks and Check Forgery.
Under current law, it is a wobbler crime to (1) forge a check of any
amount, (2) write a bad check worth more than $450, or
(3) write a bad check for less than $450 in cases where the
defendant has previously been convicted of certain crimes related to
forgery. Under this measure, forging a check worth less than $950
would become a mandatory misdemeanor except that a defendant who
commits identity theft in connection with forging a check could
still be charged with a felony. The measure also makes writing a bad
check worth less than $950 a mandatory misdemeanor, except that a
defendant who has three or more convictions for certain crimes
related to forgery could still be charged with a felony.
- Drug Possession. Under current law,
possession of most controlled substances (such as cocaine or heroin)
can be charged as a misdemeanor, a wobbler, or a felony. This
measure makes such crimes a mandatory misdemeanor. However, the
measure would not change the penalty for possession of marijuana,
which is currently either an infraction or a misdemeanor.
Resentencing of Previously Convicted Offenders.
This measure allows offenders currently serving felony sentences for the
above crimes that it reclassifies as misdemeanors to apply to be
resentenced by the court as misdemeanants. Offenders would have three
years after the enactment of the measure to apply for resentencing,
unless they can show good cause for a delayed application. The measure
limits eligibility for resentencing to offenders who have not committed
certain severe crimes including murder and certain sex and gun felonies.
In addition, the measure states that a court is not required to
resentence an offender if the court finds it likely that the offender
will commit one of the severe crimes specified in the measure. Offenders
who are resentenced—regardless of whether they are in prison or
jail—would be subject to one year of supervision on state parole, unless
the judge chooses to waive that requirement.
In addition, certain offenders who have already completed a sentence
for a felony the measure reclassifies as a misdemeanor could apply to
the court to have their felony conviction reclassified. The measure
limits eligibility for reclassification to individuals who have not
committed one of the specified severe crimes.
Funding for Truancy Prevention, Treatment, and Victim
Services. The measure requires the Department of Finance
(DOF) to calculate annual savings to the state from the enactment of the
measure and the Controller to annually transfer that amount from the
General Fund into a new special fund—the Safe Neighborhoods and Schools
Fund. Under the measure, monies in the fund would be continuously
appropriated without further legislative action and allocated annually
as follows:
- 25 percent to the State Department of Education to administer
grants aimed at reducing truancy, drop-outs, and victimization among
K-12 students in public schools.
- 10 percent to the Victim Compensation and Government Claims
Board for victim services grants.
- 65 percent to the Board of State and Community Corrections to
administer a grant program to public agencies aimed at supporting
mental health and substance abuse treatment services and diversion
programs for individuals in the criminal justice system.
Fiscal Effects
This measure would have a number of fiscal effects on the state and
local governments. The magnitude of these effects would depend on
several key factors. In particular, it would depend on the way
individuals are currently being sentenced for the felony crimes
reclassified by this measure. Currently, there is limited data available
on this, particularly at the county level. The fiscal effects would also
depend on how certain provisions in the measure are implemented,
including how offenders would be sentenced for crimes reclassified by
the measure. For example, it is uncertain whether such offenders would
be sentenced to jail or misdemeanor probation and for how long. In
addition, the fiscal effects would depend heavily on the number of
crimes affected by the measure that are committed in the future. Thus,
the fiscal effects of the measure described below are subject to
uncertainty.
State Effects of Sentencing Changes
The proposed sentencing changes would affect state prison, parole,
and court costs. In total, we estimate that the effects described below
could eventually result in net state criminal justice system savings of
a few hundred million dollars annually. As noted earlier, any state
savings would be deposited in the Safe Neighborhoods and Schools Fund
and allocated for various purposes specified in the measure.
State Prison and Parole. This measure makes
two changes that would result in a reduced prison population. First,
changing future crimes from felonies and wobblers to misdemeanors would
make fewer offenders eligible for state prison sentences. We estimate
that this could reduce the state prison population by a few thousand
inmates on an annual basis within a few years. Second, the resentencing
of inmates currently in state prison could result in the release of
several thousand inmates, reducing state prison costs for a few years
following the enactment of the measure.
In addition, we estimate that the resentencing of individuals
currently serving prison sentences for felonies that are reclassified as
misdemeanors would temporarily increase the state parole population by
several thousand parolees over a three year period. This increase in the
parole population would temporarily offset a portion of the above prison
savings. The prison savings would be further offset to the extent that
released inmates are sent back to prison for new crimes.
State Courts. The measure would increase
state court costs in a couple of ways. For example, the courts would
experience a one-time increase in caseload resulting from the
resentencing of offenders currently in prison and the reclassification
of those who have already completed their felony sentence. The courts
would also incur costs to hold parole revocation hearings for offenders
who, after being resentenced under the measure, violate the terms of
their parole supervision. However, these costs to the courts would be
partly offset. First, because misdemeanors generally take less court
time to adjudicate than felonies, the proposed sentencing changes would
reduce the amount of resources needed for such cases. Second, as we
discuss in more detail below, the measure would reduce the number of
individuals on county community supervision (such as felony probation)
and, thus, likely reduce the number of revocation hearings conducted by
the courts. Overall, we estimate that the measure could result in a net
increase in court costs in the first few years of enactment with net
annual savings thereafter.
County Effects of Sentencing Changes
The proposed sentencing changes would also affect county jail and
community supervision operations, as well as those of various other
county agencies (such as public defenders and district attorneys’
offices). We estimate that the effects described below could result in
net criminal justice system savings to the counties in the low hundreds
of millions of dollars annually.
County Jail and Supervision Effects. We
estimate that the proposed sentencing changes would have various effects
on the number of individuals in county jails. On the one hand, the
measure would reduce the jail population as most offenders whose
sentence currently includes a jail term would stay in jail for a shorter
time period. In addition, some offenders currently serving sentences in
jail for felonies that are reclassified as misdemeanors could be
eligible for release. On the other hand, the measure would increase the
jail population as certain offenders who would otherwise have been
sentenced to state prison would now be placed in county jail. In
addition, in the near term, a portion of the offenders who are
resentenced under the measure could potentially have their parole
revoked and be placed in county jail. On balance, we estimate that
county jail populations could decline by thousands of inmates within a
few years.
We also estimate that county community supervision populations would
decline as offenders would generally spend less time under such
supervision if they were sentenced as misdemeanants. County probation
departments could experience a reduction in their caseloads of thousands
of offenders within a few years of the enactment of this measure.
Other County Criminal Justice System Effects.
As discussed above, the sentencing changes would increase court workload
associated with resentencing and parole revocation hearings in the short
run, but would reduce workload associated with both felony filings and
revocation hearings in the long run. As a result, while county district
attorneys’ and public defenders’ offices (who participate in these
hearings) and county sheriffs (who provide court security) could
experience an increase in workload in the first few years, their
workload would be reduced on an ongoing basis in the long run.
Other Fiscal Effects
Effects of Increased Services Funded by the Measure.
Under the measure, the above savings would be used to provide
additional funding for truancy prevention, mental health and drug
treatment, and diversion programs. To the extent that such funding
expanded the number of individuals participating in these programs and
the programs were effective in making them less likely to be involved in
criminal activity in the future, the measure could result in future
savings to the state and counties.
Effects on Government Assistance Programs.
Under current law, a felony conviction can limit an individual’s access
to certain government assistance programs. For example, individuals with
a drug-related felony are not eligible for the California Work
Opportunity and Responsibility to Kids program, which provides temporary
financial assistance and employment-focused services to low-income
families with minor children. Similarly, individuals convicted of
drug-related felonies are often ineligible for the CalFresh program,
which provides low-income individuals assistance with food purchases. To
the extent the proposed sentencing changes reduced the number of
individuals with disqualifying felony convictions, a greater number of
individuals would be eligible to participate in certain government
assistance programs. This would increase the cost of these programs.
These costs could be offset to the extent these programs helped reduce
the rate at which these individuals violated the terms of their
supervision or were convicted of new crimes. The net effect of these
factors is unknown.
Additional state and county costs could occur to the extent that
offenders no longer in prison or jail because of this measure commit
additional crimes that result in victim-related government costs or
require government services, such as government-paid health care for
persons without private insurance coverage. Alternatively, there could
be offsetting state and local government revenue to the extent that such
individuals became taxpaying citizens. The magnitude of these impacts is
unknown.
Summary of Fiscal Effects
We estimate that this measure would have the following major fiscal
effects:
- Net state criminal justice system savings that could reach the
low hundreds of millions of dollars annually, which would be spent
on truancy prevention, mental health and substance abuse treatment,
and victim services.
- Net county criminal justice system savings that could reach the
low hundreds of millions of dollars annually.
Return to Initiatives
Return to Legislative Analyst's Office Home Page