Effect of sentencing reform on racial and ethnic disparities in involvement with the criminal justice system: The case of California's proposition 47

• Published date: 01 November 2020
• DOI: http://doi.org/10.1111/1745-9133.12527
• Author: Steven Raphael,Magnus Lofstrom,Brandon Martin
• Date: 01 November 2020

DOI: ./- .

SPECIAL ISSUE ARTICLE

TACKLING DISPARITY IN THE CRIMINAL JUSTICE SYSTEM

Effect of sentencing reform on racial and ethnic

disparities in involvement with the criminal

justice system: The case of California’s

proposition 47

Magnus Lofstrom1Brandon Martin1Steven Raphael2

Public Policy Institute of California

Goldman School of Public Policy,

University of California, Berkeley

Correspondence

MagnusLofstrom, Public Policy Institute

ofCalifornia.

Email:lofstrom@ppic.org

Thisresearch was supported by a grant

fromthe Arnold Ventures.

Abstract

We analyze the disparate effects of a recent California

sentencing reform on the arrest, booking, and incar-

ceration rates experienced by California residents from

different racial and ethnic groups. In November ,

California voters passed state Proposition  that rede-

fined a series of felony and “wobbler” offenses (offenses

that can be charged as either a felony or misdemeanor)

as straight misdemeanors, causing an immediate %

decline in total drug arrests, an approximate %

decline in total property crime arrests, and shifts in the

composition of arrests away from felonies towards mis-

demeanors. Using microdata on the universe of arrests

in the state in conjunction with demographic data

from the American Community Survey, we document

a substantial narrowing in interracial differences in

overall arrest rates and arrest rates by offense type, with

very large declines in the interracial arrest rate gaps for

felony drug offenses. We see declines in bookings rates

for all groups (conditional on being arrested), though we

find a larger decrease for white arrestees. This relatively

greater decline for white arrests is largely explained by

differences in the distribution of arrests across recorded

offenses. Despite the widening of racial gaps in the

Criminology & Public Policy. ;:–. ©  American Society of Criminology 1165wileyonlinelibrary.com/journal/capp

1166 LOFSTROM  .

conditional booking rate, we observe substantial

declines in overall booked arrests that are larger for

African Americans and Hispanics relative to Whites

and Asians. For some offenses (felony drug offenses),

interracial disparities in jail booking rates narrow by

nearly half. Finally, we use data from the American

Community Survey to analyze changes in the pro-

portion incarcerated on any given day and how these

changes vary by race and ethnicity. For these results,

we present trends for the time period spanning the

larger set of policy reforms that have been implemented

in the state since . We observe sizable declines in

the overall incarceration rate for African Americans,

with the largest declines observed for African American

males. The one quarter decline in total correctional pop-

ulations in the state coincided with sizable narrowing

in interracial differences in incarceration rates.

KEYWORDS

arrests, criminal justice, incarceration, Proposition , racial

disparity, reform

African Americans are heavily overrepresented at all stages of involvement with the U.S. crimi-

nal justice system. While comprising only % of the U.S. population, African Americans account

for almost one third of arrests (Snyder ) as well one third of the population on some form of

community corrections supervision (Kaeble et. al., ). African Americans are also more likely

to be detained pretrial, face a much higher lifetime likelihood of serving time in prison relative to

other racial and ethnic groups, and comprise a disproportionate share of the currently incarcer-

ated (Bonczar, ; Raphael & Stoll, ).

Given this disproportionality in involvement, one would expect changes in criminal justice

policy that impact the nature and degree of punitiveness of the criminal justice system to have

clear disparate impacts by race. That is to say,a move towards stiffer sentencing and greater puni-

tiveness should disparately impact those groups with relatively high levels of involvement in the

criminal justice system. Such disparate impacts are entirely predictable and independent of any

differential treatment that may accompany a shift towards more punitive practices.

Between the late s and the first decade of the st century,nearly all criminal justice reforms

at both the federal and state levels tended towards greater punitiveness. In recent years,however,

several states as well as the federal government have enacted policy moving in the reverse direc-

tion. At the federal level, the  Fair Sentencing Act greatly narrowed the disparity in federal

sentences for crack cocaine relativeto powder cocaine. The  First Step Act made the provisions

of the  Fair Sentencing Actretroactive, further reduced the scope of mandatory minimums for

LOFSTROM  . 1167

relatively less serious offenses, and increased the use of good time credits with an eye on reducing

actual time served. At the state level,  states have increasedthe value threshold defining the dif-

ference between misdemeanor and felony larceny (Horowitz & Fuhrmann, ). In addition, 

states have actively engaged in an attempt to reduce the use of incarceration through the Justice

Reinvestment Initiative, and have indeed observed declines in their prison and jail populations

(PEW Charitable Trust, ).

Motivated by a  federal court order to reduceovercrowding in the state’s prisons, California

has implemented the most far ranging and impactful criminal justice reforms. After decades of

explosive growth in the state’s prison population, California’s prisons held twice as many inmates

in  as they were designed to hold. The severe overcrowding and poor prison conditions led to

several lawsuitsfiled against the California Department of Corrections and Rehabilitation (CDCR)

for providing inadequate mental health care and medical care. As a result, in  a three-judge

panel was appointed to oversee the situation. The panel determined that excessive crowding in

the state’s prisons prevented improvedconditions and ordered the state in  to reduce its insti-

tutional population to .% of design capacity—at the time equivalent to a reduction by almost

, prisoners. The state appealed but the U.S. Supreme Court upheld the federal court order

in , forcing the state to implement a number of measures and reforms to reduce its prison

population.

The reforms in response to this litigation include changes in parole practice, limits on who can

be sent to prison, shifts in the definition of what constitutes a felony offense, moderation of a

particularly punitive three-strikes law, as well as increased use of good time credits and rehabili-

tation incentives for incarcerated individuals (Lofstrom, Bird, & Martin, ). As a consequence

of these reforms, California has reduced its incarcerated population by more than a quarter since

late .

In this article we specifically analyze the disparate effects of a  California sentencing

reform—Proposition  (henceforth, Prop )—on the arrest, booking, and incarceration rates

experienced by California residents from different racial and ethnic groups. The primary objec-

tive of Prop  was not to address racial disparity in the criminal justice system but to reduce

the state’s reliance on costly incarceration and overcrowding in jails and prisons.By , even

though the state had reduced its prison population by , inmates as a resultof the  realign-

ment reform (which shifted correctional responsibilities from the state to the counties), the prison

population still exceeded the court-ordered mandate, and in fact was slowly growing again. Addi-

tionally,many county jails were now experiencing overcrowding as a result of realignment and the

state spent more on corrections than it ever had before. Proponents of Prop , which redefined

a number of drug and property offenses from felonies or “wobbler” offenses (offenses that can be

charged as either a felony or misdemeanor) to straight misdemeanors, argued that the proposi-

tion would reduce the state’s reliance on costly incarceration and bring the state prison popula-

tion below the court-ordered target. The reform intended to achieve these goals with early release

of inmates serving time for one of the reclassified offenses as their main term, and shorter sen-

tences for new convictions. Furthermore, given that the requirements for a misdemeanor arrest

are stricter than those for felonies and that, with a few exceptions, California’spenal c ode directs

law enforcement to cite and release suspects arrestedfor misdemeanor offenses, arrests and book-

ings could be expected to drop, relieving pressure on county jails.

Prop  was implemented immediately after it was approved by voters on November , .

Its passage led to an immediate % decline in total drug arrests and an approximate % decline

in total property crime arrests. Moreover,within these offense categories the proportion of arrests

that were defined as felonies declined discretely (Dominguez-River et al., ; Lofstrom et. al.,