California Supreme Court Historical Society publication casts sharp gaze on recent criminal justice reforms

An essay published Tuesday by California Supreme Court Historical Society's California Legal History takes aim at recent criminal justice reforms and wonders if it is time to "put the Genie back in the bottle" and return to tougher responses to criminal offenses.

The authors of the article are no surprise: Greg Totten is the former District Attorney in Ventura County and now leads the California District Attorney's Association. Todd Spitzer is the district attorney in Orange County, where he was elected on promises to take a hard line on criminality. But Totten and Spitzer point to recent surveys that show more than two-thirds of Californians believe street crime and violence are a problem in their communities. The highest level of concern about crime was expressed by Black Californians. They also note that in July 81% of California voters supported revising Proposition 47 to increase penalties for hard drugs and theft.

Daniel M. Kolkey, a retired justice of the 3rd District Court of Appeal who is now president of the California Supreme Court Historical Society, said the article "is the first comprehensive analysis that I have seen that describes the extent to which the state's realignment legislation and the subsequent initiative measures in the prior decade dramatically altered the State's criminal justice system from what it was in the 1980s and 1990s, and how reforms during the 2010s altered the State's crime statistics."

The historical society plans to publish a counterpoint to the article next year.

The article, "Did Brown v. Plata Unleash a More Dangerous Genie?" focuses on the U.S. Supreme Court's decision in 2011 to uphold federal judges in the Northern and Eastern districts of California, who had placed limits on the state's prison population to ease overcrowding. Brown, et al. v. Plata, et al. 563 U.S. 493 (2011)

They say that decision emboldened a new generation of criminal justice reformers to eliminate or weaken many "tough on crime" measures approved by voters through the initiative process. Among the changes they made were realignment, which returned many low-level offenders from state prisons to county jails, which were even more crowded, and ultimately back onto the streets. Reformers also got ballot initiatives approved to redefine many drug and theft offenses as misdemeanors, and grant thousands of felons early release with enhanced credit awards.

"Perhaps it is time to put the Genie back in the bottle," Spitzer and Totten wrote.

The historical society also published other pieces including a defense of Serranus Clinton Hastings, the first Chief Justice of California, whose name was stricken from the law school in San Francisco because of his possible involvement in a massacre of tribal people in Mendocino County in the 1850s. There's also a tribute to the 45-year career of 2nd District Court of Appeal Justice Norman Epstein, who died in March.

That piece was a counterpoint to a piece published earlier this year that made the case for removing Hastings' name from the law school.

The full review can be found at California Supreme Court History CSCHS Review.