Opinion: Softer Crime Laws Will Loom Large in Gov. Brown’s Legacy

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Gov. Jerry Brown at a memorial ceremony for fallen California Highway Patrol officers in May. Courtesy of the governor’s office

By Dan Walters | CALmatters Columnist

Jerry Brown spent much of his first governorship four decades ago dodging the political fallout of California’s rising crime rates.

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Republicans were hammering him and Democratic legislators for their supposed softness on crime and several lawmakers lost their seats. Alarmed, Brown and the Legislature reacted with a bunch of lock-’em-up laws.

Brown won a second term in 1978, but lost his 1982 bid for the U.S. Senate and later saw three of his appointees to the state Supreme Court ousted for refusing to approve death penalties.

By and by, the legislation and harsher sentences sought by prosecutors and imposed by judges resulted in a flood of new prison inmates and dozens of new prisons to warehouse them.

California’s crime rates peaked about 1980, then began a slow but steady decline. Whether that was due to the tougher sentences or sociological and demographic factors has been the subject of endless debate.

By the time Brown returned to the governorship in 2011, prisons were horrendously overcrowded with eight times as many inmates as they had during his first governorship and federal judges were demanding reductions.

Brown himself had also evolved, and his final term as governor, which will end next January, has been marked by his efforts, and those of criminal reform advocates and a more liberal Legislature, to sharply reduce the number of convicts.

Two ballot measures, one sponsored by Brown himself, and dozens of legislative bills have reclassified some felonies as misdemeanors, diverted more felons into non-custodial oversight and/or local jails and otherwise softened consequences for those who commit crimes.

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The final months of Brown’s two-part governorship are seeing even more such efforts, including Brown-sponsored legislation to allow more felons to avoid prison if judges find them eligible for psychiatric treatment. However, after law enforcement officials raised a big stink, Brown backtracked and now wants to tighten up such diversions.

With the Aug. 31 deadline for legislative action fast-approaching, three other major criminal justice changes await final votes.

One, passed by the Assembly this week, is aimed at eliminating cash bail for those facing criminal charges. Critics say cash bail discriminates against the poor, and a coalition of penal reform groups pushed to do away with it in favor of evaluating defendants’ flight risks. However, the version of Senate Bill 10 that passed the Assembly was not as comprehensive as many wanted.

A second measure, Senate Bill 1279, would limit sentences for felony convictions to twice the “base term,” doing away with “enhancements” that are often tacked on.

The third, Senate Bill 1437, would repeal California’s long-standing “felony murder rule” that says if someone dies in the commission of a felony, anyone involved can be convicted of murder even if he or she didn’t actually pull the trigger or otherwise directly cause the death.

If enacted, the measure not only repeals the rule for future prosecutions but allows those convicted under it to petition for reduction of their sentences.

The rule has been a powerful tool for prosecutors to use in multiple-defendant cases, such as armed robberies in which one of several robbers shoots the victim. The California District Attorneys Association is highly critical of the measure, saying it is “unworkable.”

The scope of criminal law changes during Brown’s second governorship is stunning but it may be years before we know whether they were the right thing to do, or made Californians more vulnerable to crime.

Either way, they will be a big piece of his political legacy.


CALmatters is a public interest journalism venture committed to explaining how California’s state Capitol works and why it matters. For more stories by Dan Walters, go to calmatters.org/commentary.

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