Crime legislation: Focus on facts, not fear

California already had what were arguably the nation’s toughest sex offender laws in 2006 when voters, spurred on nightly by fear-mongering television hosts such as Nancy Grace and Bill O’Reilly, adopted this state’s version of Jessica’s Law. Proposition 83 required all convicted sex felons, whether violent or not, whether still on parole or not, and whether at high or low risk of reoffending, to wear electronic monitoring devices for the rest of their lives. Drafters ignored the fact that there was virtually no evidence that global positioning satellite tracking reduces the number or severity of sex crimes, and they didn’t consider whether to allocate the high costs of perpetual monitoring to the state or to county governments. They didn’t think through how to penalize parolees and post-parole registrants who cut off or disabled their ankle monitors.

A proposal that might have made for an instructive pilot program that revealed flaws and allowed for course corrections was instead rushed onto the ballot and then onto the books, and California has been dealing with the consequences ever since.

Now, parolees and post-parole sex registrants are cutting off or disabling their ankle monitors in increasing numbers each year. Lawmakers on both sides of the aisle have introduced bills intended to toughen oversight (or at least the appearance of oversight) of sex offenders and others who violate the terms of their release. They tend not to criticize the disastrous but still-popular Proposition 83 but focus instead on public safety realignment under AB 109, another law that was passed hastily, this time by the Legislature in 2011 as part of a budget package to cut costs and prison overcrowding.

AB 109 sends many newly convicted felons to county jails instead of state prison and redirects oversight of some felons, as their incarceration ends, from the state parole agency to county probation departments, under a program with the cumbersome title of post-release community supervision, or PRCS.

PRCS violators who formerly would have been returned to prison for up to a year are now returned to county jail, and for only up to six months — including those whose violations consist of disabling their monitoring devices. Some lawmakers claim that county sheriffs release such violators immediately, or never even take them in, because their jails already are overcrowded. Some lawmakers have responded with bills to send such people back to state prison instead of county jail. Some of those bills would commit them to prison for the one-year period they formerly would have served; some would commit them for as long as three years — far longer than such violators ever would have served before AB 109 was adopted. Some would make sex offenders ineligible for county jail in the first place and require them to be housed in prison even on new non-sex-related offenses.

In other words, these bills would roll back realignment and restock state prisons with sex offenders, low-risk and high-risk alike, in some cases at a greater rate and for a longer period than they were ever imprisoned before, and it would do so just as the state is making headway in its effort to comply with federal courts and ease prison overcrowding. California prison overcrowding had become so bad, and medical and mental health services for inmates was so inadequate, that federal courts found the state to be violating constitutional strictures against cruel and unusual punishment.

But lawmakers need to slow down and take a breath. This is how we got into trouble in the first place — with swiftly passed, knee-jerk laws in reaction to sensational headlines. California must use its deliberative, legislative hearing process to gather data, air views and clarify just what the problems are that we are trying to solve, and what the best ways are to solve them.

The good news is that, so far, despite questionable and in some cases clearly wrongheaded bills that feed on fear rather than facts, the process is working. The Assembly Public Safety Committee is turning away draft legislation that attempts to pick off important but in the end secondary issues, such as which parole violators should go to state prison instead of county jail. Chairman Tom Ammiano (D-San Francisco) is instead zeroing in on protecting Californians while relieving prison overcrowding to keep federal court intervention at bay; reducing incarceration costs to eliminate the need for new taxes or further service cuts; and reducing recidivism. A similar process is underway in the Senate.

Yes, lawmakers must also ensure that wrongdoers, such as those who cut off their monitoring devices — even those low-risk offenders who are being foolishly and wastefully tracked because of earlier, poorly considered lawmaking — are punished.

But the more deliberative process allows facts to trump fear. It turns out that a manufacturing or design flaw in the devices may render them too easy to disable, and the solution may lie in firming up the contract with the supplier rather than changing the law to enhance punishment (although the two responses are not mutually exclusive).

Or, to approach the issue more strategically, it may make more sense to focus on why sheriffs who turn away PRCS violators are not adequately assessing the risks posed by each offender and responding accordingly with sensible published protocols for deciding which inmates need to remain behind bars and which can be released without endangering public safety. Data-sharing and best-practices training to get sheriffs to update their operations could be far more effective at protecting the public — and protecting the public purse at the same time — than adopting new, harsher and too often counterproductive punishments.

And at some point, preferably sooner rather than later, lawmakers must turn their attention to sentencing reform, so that more prison and jail space is reserved for unrepentant, irredeemable recidivists, and greater investment is made in effective correction, treatment, rehabilitation and supervised reentry for the addicted, the mentally ill and those simply on a destructive road who remain amenable to change.

The best path to solving problems created by frenzied lawmaking is not more frenzy. It’s better thinking. That’s the way to pull California out of its prison mess instead of legislating its way in deeper.