Racial Bias Remains in California’s Criminal Justice System Even After Prop 47 Passed

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It’s no secret that African-Americans are often punished more harshly when convicted of a crime than their white counterparts. This is especially true in California, where an overwhelming percentage of the prison population — over two thirds to be exact — is Black, according to 2015 data from the California Department of Corrections and Rehabilitation.

Stark racial disparities in imprisonment are what ultimately prompted California to pass the criminal justice reform measure known as Proposition 47 in 2014, which reduced the classification of half a dozen “nonserious and nonviolent property and drug crimes” from felonies to misdemeanors.

As a result, such crimes carried significantly lower prison sentences; millions of prisoners saw the red stain of conviction erased from their permanent records; and an estimated 13,000 inmates were released, according to Al Jazeera.

The passing of Prop 47 was considered groundbreaking, especially for Black Californians who are twice as likely to be charged and convicted of drug crimes. However, not everyone felt the feel-good effects of the measure.

Despite the proposition’s criminal justice reform efforts, the odds still seemed to be stacked against African-Americans caught in the system. A 2009 study showed that Black Americans in California were more likely to be charged with dealing drugs while white Californians were more likely to be charged with drug possession. Prop 47 only downgraded the charges for simple drug possession — not drug dealing, or possession with “intent to sell.”

So did the measure really do much to help African-Americans? It depends on who you ask.

“The judicial system is rigged against us,” said Donnie Anderson, a Black California man who was arrested and charged with transport/sale of a controlled substance after police showed up to a neighbor’s house where he and his friends were gambling. “If you (a white person) go to jail, and I have the same amount of drugs as you, my sentence is automatic state prison. Yours is go home.”

But Anderson didn’t have any drugs. He told Al Jazeera that his friends had drugs on them, but he didn’t — that’s why he didn’t flee. Because Anderson, who was just 19 at the time, had a large sum of cash on him from the gambling, police believed he was there selling drugs.

The news site reports that the teen ultimately took a plea deal of 60 days in county jail and three years probation for a felony that originally carried a sentence of up to 20 years and a fine of $20,000 dollars.

Because Prop 47 doesn’t cover drug dealing, it was of no help to Anderson. But others saw the passing of the ballot measure as a victory for the Black community and other communities of color that are disproportionately impacted by the criminal justice system.

“I’m almost certain that the declines in incarceration rates for racial and ethnic minorities have been larger than they have been for whites, simply because they’re so heavily over-represented in California’s institutional populations,” said Stephen Raphael, a public policy professor at the University of California Berkeley.

While Prop 47 did reduce incarceration rates, there are still a few complications within the measure that leaves loopholes for potential racial bias. For instance, Al Jazeera reports that under the proposition, possession with “intent to sell” is often left up to the discretion of the police officer and prosecutor. Such free judgment can leave room for discrimination.

“We don’t have proof of this, but what we feel like is happening is that the police are charging up to avoid prop 47, because it is discretionary,” said Lynne Lyman, a California state director at the Drug Policy Alliance who helped work on legislative predecessors to Prop 47. “Simple possession versus possession with intent is completely discretionary.”

“Unfortunately, that discretion ends up playing out largely along race lines, where people of color get intent to sell and white people get possession,” she added.

Now Lyman is putting her energy into another ballot measure: Prop 64 — which would legalize the recreational use of marijuana. The bill officially passed Tuesday, making thousands of inmates and former inmates with non-violent marijuana charges eligible to apply for release or to get the felony removed from their record, Al Jazeera reports.

Again, a large majority of people in jail for the possession or distribution of marijuana are Black or Latino.

“It’s so important for African Americans and Latinos to understand that this is for us,” said Anderson, who has since become an advocate for a space for Black Americans in California’s booming marijuana industry. “And it’s good for us.”

While Prop 64 only reduces offenses for marijuana — not other drugs — criminal justice advocates like Lyman are working to get all drug charges decriminalized.

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