Governor Jerry Brown's Latest Criminal Justice Reform Ballot Measure for California: Real Violence Called 'Non-Violent' Offenses

Last week, California Governor Jerry Brown announced The Public Safety and Rehabilitation Act of 2016, a ballot measure to be voted on by Californians in November 2016. Newspaper headlines immediately declared, "Jerry Brown wants to make it easier for non-violent offenders to get parole" and "California governor pushes ballot measure to release nonviolent criminals from prison earlier." By almost every account, the proposal was lauded as a paradigm of modern criminal justice reform.

During a conference call discussing the initiative, Brown said, "This affects thousands of inmates and it is significant." Los Angeles Police Chief Charlie Beck declared, "California currently keeps the wrong people incarcerated for the wrong length of time . . . I think that this will effectively open up bed space for those that richly deserve to be there." Even Bonnie Dumanis, the Republican District Attorney of San Diego, enthusiastically affirmed that "these changes would encourage inmates to participate in rehabilitation programs that would make prisons and communities safer." The atmosphere was dripping with adulation and a sense of humane progress. And it all made sense because the reasoning was in line with the growing national sentiment that over-incarceration for nonviolent offenses is neither efficacious nor just. Most importantly, nobody was getting near that third rail and advocating for dramatic reductions in prison sentences for people incarcerated for violent acts -- or were they, but didn't know it?

Here is the exact legal language from the governor's initiative:

(1) Parole consideration: Any person convicted of a non-violent felony offense and sentenced to state prison shall be eligible for parole consideration after completing the full term for his or her primary offense.

Someone in the governor's office certainly checked that this new law wasn't going to free criminals convicted of really violent acts, right? Surely, this ballot measure wouldn't make it easier to get a reduced sentence for a felony domestic abuser, or someone who was convicted of breaking into a house in the middle of the night, or of raping his spouse or of committing a sexual assault on an unconscious victim, or committing a felony assault that injured a police officer? The governor and the media that covered the ballot measure certainly implied that those types of violent criminals would serve their entire sentences. Unfortunately, the truth is that under this law, convicts of each of those crimes would be eligible for immediate release from prison.

In the legal lexicon, words take on meanings that are both specific and even counterintuitive. The legislators who drafted the California Penal Code knew this well and specifically defined a "violent" felony under California law. There are only twenty-two "violent felonies" listed in California Penal Code Section 667.5(C)(1-22). That list certainly includes the worst possible crimes: murder, robbery, kidnapping, child molestation, and rape. But the label "violent felonies" is a bit of a misnomer because there are many other crimes that also involve significant violence but are not on that list. California courts can classify only those twenty-two offenses as being legally "violent." Therefore, when the governor's initiative contains the word "non-violent," he is not saying that the crime doesn't involve violence; the crime is just not one of those twenty-two specific types of violence.

So, what types of crimes are violent but not legally "violent felonies"? Below is a sampling of just fifteen of the criminal offenses in California that are classified as "non-violent" under California law, but actually do involve significant violence. This means that a current inmate convicted of any one of these offenses would be eligible to have his or her sentence dramatically reduced or even be released if the governor's ballot measure passes. You can judge for yourself whether you think the word "non-violent" means what Governor Brown and the initiative's proponents have publicly claimed.

Just Some of the Offenses that are considered "non-violent" under the governor's ballot measure:
1. Residential burglary (Penal Code 459 1st)
2. Felony domestic violence (Penal Code Section 273.5)
3. Felony assault with a deadly weapon (Penal Code Section 245(a)(1))
4. Felony assault with a gun (Penal Code Section 245(a)(2))
5. Felony assault with an assault weapon (Penal Code Section 245(a)(3))
6. Felony assault with force likely to produce great bodily injury (Penal Code Section 245(a)(4))
7. Spousal rape (Penal Code Section 262(a)(3))
8. Felony battery on a police officer with injury (Penal Code Section 243(c)(2))
9. Felony assault with a stun gun (Penal Code Section 244.5(c))
10. Felony assault with caustic chemicals (Penal Code Section 244)
11. Felony sexual battery (Penal Code Section 243.4)
12. Felony sexual battery on an unconscious victim (Penal Code Section 243.4(c))
13. Felony sexual battery by restraint (Penal Code Section 243.4(a))
14. Felony battery on a school employee (Penal Code Section 243.6)
15. Discharging a firearm at an inhabited dwelling (Penal Code Section 246)