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Who's right and who's wrong about Proposition 47 and crime numbers?

Sheriff Jim McDonnell and the Stanford Justice Advocacy tussle over Proposition 47

Proposition 47 is an amazing success, and recidivism by inmates who got out of prison because of it is exceptionally low, the Stanford Justice Advocacy Project said in a study released last week.

Proposition 47 puts Californians at risk by causing an increase in violent crime, not just property crime, Los Angeles County Sheriff Jim McDonnell says in a series of videos posted Wednesday on the Los Angeles Times Opinion page.

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So who's right? The Stanford folks are accurate, but read their statements carefully. They mean less than it may at first appear. And McDonnell? He's reaching the same conclusions that many in law enforcement are, but the link between those conclusions and the underlying numbers is sketchy. And even if he's right, he's got it within his hands to do something about it right now and stay well within the letter and spirit of Proposition 47.

Let's start with the Stanford study, but not without first recognizing that it is the work of the same group that wrote and advocates for the ballot measure, which reclassified drug possession and five theft felonies as misdemeanors.

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"By any measure, the recidivism rate of prisoners whose sentences were reduced under  Proposition 47 is exceptionally low," the project reports.

Project Director Michael Romano added, in a Stanford Lawyer Q/A, that "any increase in crime throughout the state really should not be attributed to those released from prison under Proposition 47."

The report focuses on the remarkably low recidivism rate of one particular group of people affected by the ballot measure: those who were released from prison because the new law turns their felonies into misdemeanors.

Here's where it gets a bit complex. Many inmates made their most recent trips to prison because they committed drug or theft felonies that normally would have resulted in county jail terms or probation, except for the fact that they had records of prior serious or violent felonies. The felony-with-prior meant a return to prison.

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But when Proposition 47 erased the felony status of the drug or theft crime, the inmates no longer had an imprisonable offense and were set free.

Of the 4,454 state prisoners who were able to leave prison early because they had felonies reclassified as misdemeanors, 159 have returned to prison for committing new crimes in the last year. That's a return-to-prison rate of less than 5%. And yes, that's incredibly low, especially when compared with the pre-Proposition 47 general return-to-prison rate of 42%.

And that's important, because much of the criticism of Proposition 47, as with many criminal justice reform measures, is that it endangers the public by releasing serious and violent criminals "early" – or at least earlier than they would have been released without the reform. These numbers point to a weakness in that argument. The more serious and violent offenders often have a fairly low recidivism rate compared with the general jail and prison population.

As the report notes, though, recidivism has necessarily been measured only for the one year since Proposition 47 passed, not the three years that's become the standard for recidivism measurements.

And it counts only offenders who left prison within the last year because of Proposition 47 and already have gone back -- to prison -- after having committed new crimes. It doesn't count new convictions that might have resulted in jail or probation. Nor does it count arrests. That's a big deal, because if a meth addict who got out of prison continues to take meth and steals in increments of less than $950 to support his habit, now he's not going to be arrested for it. Or else he's going to go to jail -- but because he's not going to state prison, this study doesn't include him as a recidivist. More time and more study will be needed for a fuller picture.

McDonnell says Proposition 47 has increased crime, but he's not blaming those people referred to in the Stanford study. He's got a different population on his mind -- the drug and theft offenders who used to get arrested and held in jail pending trial. Instead of getting arrested, those people are now just getting citations and orders to appear in court. Few actually show up for their court dates.

The sheriff doesn't say it in the five very short videos, but he supplied numbers that he says show the damage Proposition 47 has caused.

Since the measure passed a year ago, up to the time when these videos were shot in mid-October, according to the sheriff's numbers, 43,062 people in Los Angeles County were arrested for crimes that used to be felonies but now, because of Proposition 47, are misdemeanors. Of those, 21,030, or nearly half, have been arrested again for an additional 39,939 crimes, including 26 murders, 14 rapes and 83 robberies.

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Those numbers would appear to support the critics' basic argument: When you don't jail these people on drug and other relatively minor charges, they are free to commit all manner of more serious crimes, including murder, rape and robbery, and they do.

But there are some problems with that argument. Before Proposition 47, many of those accused criminals would have been arrested and jailed, but then would have bailed out -- so they'd have been on the street anyway, still able to commit those more serious crimes. A complete study would compare McDonnell's numbers with a similar group that got arrested, jailed and bailed out.

It's also worth taking a look at a Times story that ran on the first day of this year discussing steep drops in crime last year. The most interesting thing is that criminologists really couldn't figure out what caused the drop -- just as they often can't figure out what causes increases. Rapes in county patrol areas were up last year, as were murders in the city of L.A., but it wasn't clear why. Crime dropped in the last few years all over the country, and increased this year in many cities outside California. Proposition 47 obviously wasn't the cause of out-of-state crime jumps. It's not clear that it's the cause of in-state crime jumps either.

Still, I acknowledge that the sheriff's numbers are troubling -- troubling enough to raise this question: Why did deputies and police officers only issue citations to appear in court instead of taking the suspects to jail? Proposition 47 doesn't require that. Suspects can be arrested, just as before, assessed for risk and held in jail or referred to treatment. The sheriff argues (as do many in law enforcement) that there's simply no room in the jail for them. But that argument won't wash. There was even less room in the jail last year, before Proposition 47, for people who committed the same crimes, yet they were arrested and held there.

Has Proposition 47 increased crime? It's far too early to tell, but it seems to me there is enough anecdotal evidence to form this hypothesis: There may be a link between the increase in crime and the way law enforcement has chosen to implement Proposition 47. It's not the ballot measure that's flawed. It's the practices, procedures and attitudes, rooted in another era, that may be putting us at risk.

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