Walters: Court Upbraids Jerry Brown on Ballot Measure

A political saga that began more than four decades ago came full circle last week when the state Supreme Court, including four Jerry Brown appointees, indirectly upbraided the former governor.

Unanimously, the court declared that Proposition 57, a major criminal justice overhaul sponsored by Brown and overwhelmingly passed by voters in 2016, did what its critics said it would do, not what Brown told voters.

Brown portrayed the measure, which lightened sentences for some felons, as a common sense reform to give nonviolent felons a better chance at rehabilitation by allowing them to earn earlier releases on parole. He wanted to undo, he said, a torrent of lock-‘em-up sentencing laws that began during his first governorship four decades earlier, when crime rates were peaking and voters were demanding harsher punishment.

However, Proposition 57 did not specify which felonies would be deemed nonviolent, but indirectly relied on a Penal Code list of 23 violent crimes. The list excluded quite a few felonies, such as sex crimes, that most of us would deem to be violent — and, in fact, are counted as violent offenses by the state Department of Justice.

It Could Shorten the Terms of Some Vicious Predators

Critics of Brown’s measure — the state’s prosecutors, particularly — pointed out the anomaly, and complained that if passed, it could shorten the terms of some vicious predators.

Brown responded by promising that by regulation, state prison officials would prohibit sex criminals from being paroled under Proposition 57 and voters apparently believed him.

As promised, regulations promulgated by the Department of Corrections and Rehabilitation excluded many sex offenders from Proposition 57’s softer parole provisions. But attorneys for those offenders quickly disputed the rules’ legality and they scored victories in trial and appellate courts.

The lawsuits contended that the agency could not, by regulation, modify the wording of a voter-approved ballot measure and eventually the issue wound up in the state Supreme Court, which set aside the regulations.

“The initiative’s language provides no indication that the voters intended to allow the (Corrections) department to create a wholesale exclusion from parole consideration based on an inmate’s sex offense convictions when the inmate was convicted of a nonviolent felony,” wrote Chief Justice Tani Cantil-Sakauye in the unanimous decision.

Cantil-Sakauye subtly but unmistakably criticized Brown for sloppy drafting of the ballot measure.

The State’s Lawyers Attempted to Defend the Disputed Rules by Citing Brown’s Sponsorship

“Had the drafters of Proposition 57, and by extension the voters, intended to exclude inmates from nonviolent offender parole consideration based on prior or current sex offense convictions, it would have been a simple matter to say so explicitly,” she said.

The state’s lawyers attempted to defend the disputed rules by citing Brown’s sponsorship, but that also drew the court’s scorn. “Our analysis of the voters’ intent does not change merely because the proponents of the initiative here included the governor,” Cantil-Sakauye wrote.

The ruling upholds the critics of Proposition 57, who warned in 2016 that it was hastily and sloppily drafted and could allow sex predators to win paroles and once again prowl for victims.

Ironically and perhaps tragically, it was issued just weeks after voters rejected a measure, Proposition 20, that would have corrected the gaps in Proposition 57.

Thus, there is an indelible stain on what Brown had said was one of his proudest achievements.

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.