Feature: Sentencing Reform Initiative Defeated in California, "Tough on Crime" Initiatives Win in Oregon

Tough on crime can still trump smart on crime, if Tuesday's elections results on sentencing initiatives in two of the nation's most progressive states are any indication. In Oregon, voters approved two competing initiatives that will increase sentences and prison populations, while in California, a multi-million dollar campaign to dramatically reform sentencing went down in the face of opposition from prison guards and politicians, and another initiative that will see longer sentences and more prisoners was approved by voters.

In California, the Drug Policy Alliance and the Campaign for New Drug Policies pumped nearly $8 million into the effort to pass Proposition 5, the Nonviolent Offenders Rehabilitation Act (NORA). NORA would have deepened and vastly expanded the "treatment not jail" sentencing reforms passed in 2001 as Prop. 36. While the Legislative Analyst's Office estimated it would cost $1 billion a year to implement, it also estimated that it would save $1 billion a year in prison costs, as well as $2.5 billion in savings from prisons that would not have to be built.

NORA had the near unanimous support of the drug treatment community, as well as the League of Women Voters of California, the Children's Defense Fund-California, the California Nurses Association, the California Federation of Teachers, the California Society of Addiction Medicine, the California State Conference of the NAACP and the National Council of La Raza, among others.

But a deep-pocketed opposition led by five current and former governors whose policies helped to create California's seemingly never-ending prison crisis and financed largely by the people who most directly benefit from increased prison populations, the California prison guards' union, undermined public support for NORA. The measure was also opposed by another group whose ox would have been gored, the drug court professionals -- arguably a part of the treatment community, but just as arguably a part of the law enforcement community. Several prominent state newspapers and actor Martin Sheen joined the opposition as well.

"It is a great threat to our neighborhoods," Gov. Arnold Schwarzenegger said at a news conference featuring the assembled governors outside the Criminal Courts Building in downtown Los Angeles last Thursday. "It was written by those who care more about the rights of criminals."

The measure "will cost dollars and it will cost lives," chimed in former Gov. Gray Davis, a Democrat, neglecting to mention that it would have saved many more dollars than it would have cost.

It wasn't just the governors. Sen. Dianne Feinstein and Attorney General Jerry Brown, also Democrats, opposed the measure too, and taped TV commercials against it. "Say no to drug dealers," Feinstein said in her ad, while Brown -- whose spot was paid for by the prison guards union -- called it "a complicated measure" that would "limit court authority over drug dealers and addicts who refuse treatment."

All told, the organized opposition pumped nearly $3.6 million into defeating NORA, more than half of it coming from the prison guards' union. And it worked -- on election day, NORA went down to defeat by a margin of 61% to 39%.

In a statement Tuesday evening when the outcome became apparent, Yes on 5 campaign spokeswoman Margaret Dooley-Sammuli laid the defeat at the door of the opposition. "Today we saw special interests overpower the public interest," she said. "California's prison guards poured millions of dollars into stopping Prop. 5 and securing this victory for the poison politics of crime."

Stopping NORA would be a pyrrhic victory, Dooley-Sammuli predicted, citing a looming federal court hearing on whether to take control of the overcrowded, under-budgeted prison system.

"The prosecutors and prison guards who led the campaign against Prop. 5 got their way tonight -- but they've really lost. The next step for our prisons will probably be a federal takeover. Prop. 5 was Californians' last, best chance to avoid a takeover and make our own choices about how to address prison overcrowding. Now federal judges are likely to impose solutions that no one will be happy about."

The effort to pass NORA was "not in vain," Dooley-Sammuli added. "Prop. 5 presented a vision for a future in which we do more for young people with drug problems, and improve the way we provide court-supervised treatment in California. There is plenty to build on going forward," she said.

But Golden State voters were still seduced by the "tough on crime" message that has played so well in California since the days of Ronald Reagan. While defeating NORA, they passed Proposition 9, also known as the Crime Victims Bill of Rights Act, by a margin of 53% to 47%. Naturally enough, the measure is concerned primarily with victims' rights, but also includes provisions that block local authorities from granting early release to prisoners to alleviate overcrowding and mandates that the state fund corrections costs as much as necessary to accomplish that end. It also lengthens the amount of time a prisoner serving a life sentence who has been denied parole must wait before re-applying. Currently, he must wait one to five years; under Prop. 9, he must wait three to 15 years. Prop. 9 would also allow parolees who have been jailed for alleged parole violations to be held 15 days instead of the current 10 before they are entitled to a hearing to determine if they can be held pending a revocation hearing, and stretches from 35 to 45 the number of days they could be held before such a hearing. These last two provisions, as well as one limiting legal counsel for parolees, all conflict with an existing federal court order governing California's procedures.

But if "tough on crime" still sells, another measure, Proposition 6, the Safe Neighborhoods Act, was too hard-sell even for California's crime-weary electorate. That measure, which was aimed primarily at gang members, violent criminals, and criminal aliens, also included provisions increasing penalties for methamphetamine possession, possession with intent, and distribution to be equal to those for cocaine, and provided for the expulsion from public housing of anyone convicted of a drug offense. The measure also mandates increased spending for law enforcement. It lost 69% to 31%.

"Tough on crime" worked this year in Oregon, too, with two competing measures that would ratchet up sentences and prison populations both passing. Measure 57, a legislative measure placed before the voters, and Measure 61, the brainchild of inveterate Oregon crime-fighter and initiative-generator Kevin Mannix, won with 61% and 51% of the vote, respectively.

The Mannix measure, the tougher of the two, would have set mandatory minimum sentences for a number of offenses, including drug sales, and is projected to add between 4,000 and 6,000 new inmates to the prison system over the next five years at a cost of between $500 million and $800 million. But because it garnered fewer votes than Measure 57, the latter is the one that will actually become law.

Measure 57 increases some sentences for repeat offenders and includes funding for behind-bars drug treatment. It is estimated to generate 1,670 additional prisoners over the next five years at a cost of $411 million, as well as requiring the state to borrow another $314 million for new prison construction.

Even with the national economy in a free-fall and state budgets increasingly feeling the squeeze, it looks like it's still easier to win with the politics of fear than with the politics of justice and compassion.