In a feat of Orwellian bravado designed to drive down a ballooning prison population, California recategorized domestic violence, a crime with the word “violence” in its very name, into a “non-violent,” “non-serious” misdemeanor offense. The history of California criminal justice reveals the twisted path and misaligned incentives that led to this point. 

At the California constitutional convention in Monterey in 1849, the delegates established a basic statutory plan for crime and punishment. After much experimentation over the next 60 years, the California Legislature adopted the Indeterminate Sentencing Act in 1917. The Act emphasized rehabilitation of inmates. Indeterminate sentencing is a sentence imposed as a range, rather than as a fixed term. An offender served the minimum term of the indeterminate sentences, at which point he appeared before the Directors of the Board of Prisons or, as it is known today, the parole board, to determine whether the inmate had been sufficiently rehabilitated to be released from prison. 

The indeterminate sentencing scheme operated for the next 59 years. But, it increasingly came under criticism for three reasons. 

· There appeared to be disparities in its application along racial lines

· There was a perceived lack of transparency about how sentencing decisions were made.

· Finally, there was lack of uniformity in its application, which led to discrepancies in sentencing for similar classes of crimes.

In response, the State Legislature passed the Uniform Determinate Sentencing Act of 1976, which was signed into law by Democratic Governor Jerry Brown.

Former Governor Jerry Brown stated in 2016 that his intention behind signing this legislation was that he “…was aware that some of the sentences by the parole board, some of the decisions came up with disparate results so some would be kept a lot longer than others and people were alleging racial disparities.” Continued Brown, “…there was also, I had to try to put more certainty into the process. I thought clarity and certainty of prison time would act as a deterrent.” 

Whereas the goal of the prior indeterminate sentencing structure centered on rehabilitation of the individual, the explicit aim of determinate sentencing was punishment: 

The Legislature finds and declares that the purpose of imprisonment for crime is punishment. This purpose is best served by terms proportionate to the seriousness of the offense with provision for uniformity in the sentences of offenders committing the same offense under similar circumstances. (Uniform Determinate Sentencing Act of 1976)

Moreover, despite the stated objective of uniformity, the Legislature added sentencing enhancements to the determinate sentencing program. A sentencing enhancement increases an offender’s prison time, if deemed necessary by a judge, depending on the severity of the crime committed by the offender. Regardless, therefore, of the expressed desire for uniformity in sentencing, these enhancements would not foster consistency because they would be deployed unequally, depending on the circumstances of the crime committed. The provisions of the Uniform Determinate Sentencing Act engendered unintended consequences that California grapples with this today. 

Drive-By Sentencing

The number of people imprisoned began to swell. California’s incarcerated population grew from 32.4 prison commitments per 100,000 residents in 1977 to 39.2 in 1978. By 1997, the prison population had increased nine times to 155,276 inmates. By the early 2000’s, California’s prisons housed approximately 180,000 inmates. As the number of prisoners continued to grow, California constructed more prisons to accommodate them. Twenty-one of the 35 prisons in California were built during this period. A combination of lengthy sentences brought about an ever growing list of enhancements, colloquially known as “drive-by sentencing,” and the removal of parole as a mechanism for early release were directly responsible for the explosion of the prison population. 

The massive growth in prisoners led to declining conditions in overcrowded prisons. Several lawsuits were filed, claiming that the medical care in prisons in California violated the 8th Amendment of the United States Constitution. In 2011, the US Supreme Court ruled in favor of the prisoners and mandated that California reduce the prison population to 137.5% capacity within two years. Within a very short amount of time, California had to find a way to shrink the number of incarcerated individuals, a requirement that spawned many hasty attempts to reduce the prison population. The goal had changed again. Where it had once been rehabilitation, and then punishment, now the focus was the rapid depopulation of prisons filled with too many inmates.

California passed three laws to reduce the prison population:

· The Public Safety Realignment Initiative of 2011 provided that an individual convicted of certain non-serious, non-violent and non-sexual felonies with a sentence longer than one year should serve the sentence in county jail rather than state prison. Further, when inmates were released from county jails, they would receive supervision at the county level, rather than being placed on state parole.

· Proposition 47, known as The Safe Neighborhoods and School Act, was adopted in 2014. The Proposition redefined three broad categories of crime, thefts, forgeries and drug possession from felonies to misdemeanors.

· Finally, Proposition 57, officially titled the California Parole for Non-Violent Criminals and Juvenile Court Trial Requirements Initiative, was enacted in 2016. Under Proposition 57, individuals sentenced for non-serious, non-violent and non-sexual felonies were eligible for parole after they served the longest term of imprisonment imposed by a court for their primary offense, if they no longer posed a risk to the public. Proposition 57 also increased so-called “good-time” parole credits given to prisoners who completed educational or rehabilitation programs in prison. 

Domestic Violence Nonviolent?

These three laws to reduce California’s prison population have had significant consequences for victims of one of the most serious and deeply personal crimes: domestic violence. Pursuant to these laws’ revisions, domestic violence is now classified as a non-violent, non-serious and non-sexual crime and is treated as a misdemeanor under California law

According the California Department of Justice’s OpenJustice portal, from 2012 to 2021, California recorded 1,614,424 domestic violence-related calls for assistance from law enforcement. While this represents approximately 2.5% of California’s population, the total amount of domestic violence may be underreported. According to a 2010 study done by the Los Angeles County Public Health Department entitled Domestic Violence Data Sourcesone of the reasons for this dearth of reporting comes from a discrepancy in California’s mandated reporting laws and a doctors obligation under the Health Portability and Accountability Act (HIPAA). The inconsistency would lead many doctors not to report domestic violence to law enforcement out of fear of breaching HIPAA. 

An oft-ignored subset of domestic violence and family violence is child abuse. Yet, there is no greater injustice than the abuse of a child. Children are defenseless, depend on adults for their safety, and their life outcomes are inextricably linked to the care they receive. The intentional weakening of mechanisms of accountability for those that abuse children is especially significant in Los Angeles County. LA is in the midst of a massive child abuse crisis, brought on by decades of systemic neglect at the county, state and federal levels. 

A 2019 audit of the Department of Children and Family Services (DCFS), entitled Los Angeles County Department of Children and Family Services: It Has Not Adequately Ensured the Health and Safety of All Children in its Care, which was conducted by state auditor Elaine Howle, revealed that from fiscal years 2013-14 through 2017-18, 257 children in LA County died from abuse or neglect. Of those 257, 69 had some type of prior involvement by the Department in their homes. By comparison, in New York City there were 52 child homicides during the same five-year period.

The driving purpose of the current rules was to cut the number of people in prison as fast as possible. The fallout for victims of domestic violence and child abuse has been severe. Categorizing domestic violence as a non-violent offense shocks the conscience and defies logic. In examining the effect of the passage of the Uniform Determinate Sentencing Act of 1976, Governor Jerry Brown offered advice for all those attempting criminal reform. 

“Sentencing should not be the play toy of ambitious politics,” Brown proclaimed, “It ought to be the judgment of serious-minded individuals who are not running for office but have in mind public safety and have in mind the changes men and women can make over time.”

This commentary is also posted on LA Progressive.

BC Guest Commentator Thea Eskey is a freelance investigative reporter focusing on issues relating to public health, government corruption, public safety and victims rights. Thea’s current area of focus is the County of Los Angeles’ sprawling child abuse crisis and its broader implications for the county, state of California and, more broadly, the rest of the United States. The multi-disciplinary and data-driven work Thea produces encompasses many other themes, including deregulation, state and federal politics, social capital, institutionalization, the poverty-industrial complex and criminal justice reform. Thea looks forward to using her journalism to uplift stories that are often ignored and issues that for too long have been swept under the rug.

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