Twelve books stored in a Stanford University library — that’s what became of the last effort to dramatically revise California’s penal code. No passed legislation, no chaptered laws.
Half a century later, Michael Romano, chair of the newly formed California Committee on Revision of the Penal Code, stacked the books on his desk.
“I like to say it’s my iceberg that I’m trying to steer around,” said Romano, also a professor at Stanford Law School.
Months after recommending 10 changes to California’s penal code, Romano’s committee seems to have steered away from docking their work at a college library.
Less than two years after forming, the committee has pushed through more than half of its recommendations. Six of the committee’s proposals ended in passed legislation that now await Gov. Gavin Newsom’s signature or veto.
The seven-member group of current lawmakers, academics and judges is charged with recommending ways to “simplify and rationalize” criminal law and procedures, improve parole and probation and find alternatives to prison.
Despite some opposition from the California District Attorneys Association and several police groups, California’s complex criminal justice code is being rewritten, bit by bit.
California once proudly wore the badge of a tough-on-crime state. But after incarcerating more than 170,000 people at its peak in 2006, things have changed. Over the past decade, voters, legislators and governors have weighed in on policies to reduce California’s prison population, changing state laws along the way.
In 2019, the Legislature decided it wanted a comprehensive look at the penal code.
Romano likened the existing penal code to a “kind of tangled hairball of statutes and regulations and rules that are applied throughout the state, not always consistently.”
The tweaks in language, deleted sentences and new definitions may appear insignificant, but the seemingly small amendments could eventually result in the resentencing and release of thousands of incarcerated Californians, and route more people away from ever being sentenced to state prisons.
While this tactical approach is celebrated by many justice reform advocates, it also frustrates those who argue the state is getting too soft on crime, just as homicides and aggravated assaults are rising.
In 2020, homicides in California spiked to their highest level in a decade. Aggravated assaults increased to a 10-year high, according to data from the state Department of Justice. The increase in homicides is a part of a broader national trend.
“Some of these proposals are just really being advanced or approved at great risk to the public,” said Greg Totten, executive director of the California District Attorneys Association. “It’s not reform, it’s reckless.”
When the committee released its report early this year, some organizations expressed concern. California Correctional Peace Officers Association president Glen Stailey told the Associated Press that the union was concerned “about potential negative impacts on public safety.”
Several of the committee’s recommendations targeted sentencing and releases, while others focused on courtroom procedures.
Among the bills that went to the governor:
- A proposal to end mandatory minimum sentences for nonviolent drug offenses, by Democratic Sen. Scott Wiener of San Francisco (AB 73)
- A plan to limit the state gang enhancement law, by Democratic Sen. Sydney Kamlager of Los Angeles (AB 333)
- A proposal to make good behavior credits available for mentally ill people who are in a treatment facility, by Democratic Sen. Henry Stearn of Malibu (SB 317)
- A bill to retroactively repeal some sentence enhancements for people who were previously excluded, by Democratic Sen. Ben Allen of Santa Monica (SB 483)
“There is no one bill that is going to be a panacea and accomplish all of the change that we need to see,” said Anne Irwin of Smart Justice California, a justice reform group. “It’s going to take, like this year, many years with several very precise bills, each addressing a particular failing of the system.”
The committee is mostly appointed by the governor, and two seats are appointed by Assembly and Senate leaders.
Committee members worked in tandem with the governor’s office and with legislators, providing data and research for lawmakers to craft legislation. And while several of their proposals breezed through the Legislature, that wasn’t the case for everything.
Photo by Anne Wernikoff for CalMatters
Among the most contentious was the issue of gang enhancements, which adds time to people suspected of being in a gang. The bill authored by then Assemblymember Kamlager would raise the standard for prosecutors and redefine how the law determines a gang.
Kamlager was one of the committee’s inaugural members before she was sworn in as a state senator earlier this year after a special election.
Gang enhancements have long been controversial. Some, including Kamlager and criminal justice researchers, view them as a punishment that has been wielded unevenly across California, often targeting Black and Latino people, who account for 92% of those sentenced under gang enhancements.
In Los Angeles County, about 98% of people sentenced to prison for a gang enhancement are people of color, according to data from the California Department of Corrections and Rehabilitation.
Kamalager said her gang enhancements bill came out of the work she did with the committee. She said she hoped the change to the penal code would “take race out of some of these processes and try to infuse a little more fairness into them.”
The district attorneys association and Kamalager negotiated the bill’s language months ago. But days before it came up for a vote last month, the association urged lawmakers to vote it down.
“Prosecutors and law enforcement across California are united in their view that AB 333 is little more than a gift to violent criminal street gangs,” said Vern Pierson, president of the association, in an email.
The bill passed a day later with no votes to spare.
Recounting the experience, Kamlager called it “horrible.”
“I think that the law-and-order groups are doubling down,” she said. “I think it will get incredibly harder as we move forward.”
The district attorney’s association didn’t give up on its opposition, calling the bill’s passage “illegitimate” in a Sept. 17 letter to the governor.
This session, authors pulled several bills after high-profile crimes. A bill by Democratic Sen. Nancy Skinner of Berkeley to downgrade some petty thefts to misdemeanors never made it out of the Senate, after protests citing the string of robberies in the Bay Area. Skinner sits on the Committee on Revision of the Penal Code, and the bill was of its recommendations.
Senate Majority Leader Bob Hertzberg of Van Nuys also pulled a proposal for a statewide bail schedule after a Sacramento woman was killed in September by a man who was released without bail.