In California, Prop 47 has turned into a ‘virtual get-out-of-jail-free card’


A ‘virtual get-out-of-jail-free card’

A new California law to reduce prison crowding keeps one addict out of jail, but not out of trouble

Published on October 10, 2015

In San Diego

They gathered outside the courthouse in November for a celebration on Election Day, dozens of people wearing fake handcuffs and carrying handwritten signs. “End mass incarceration!” read one. “Justice not jail,” read another. California voters had just approved a historic measure that would reduce punishments for more than 1 million nonviolent offenders, most of whom had been arrested on drug ­charges. “No more drug war,” people chanted that night, as the vote became official.

This story is the sixth in a continuing series about the legacy of the war on drugs and efforts to reduce the nation’s prison population.
Click to read Part I: The painful price of aging in prison

Click to read Part II: Against his better judgment

Click to read Part III: From a first arrest to a life sentence

Click to read Part IV: Unlikely allies push for sentencing reform

Click to read Part V: Out of prison, slow steps to freedom

Click to read Part VII: Softening sentences, losing leverage

Click to read Part VIII: Struggling to fix a ‘broken’ system

The new law, called Proposition 47, was intended to reduce crowding in the state’s overwhelmed prisons, save money and treat low-level criminals with more compassion, and inside the courthouse that day was one of its first tests: James Lewis Rabenberg, 36, a homeless resident of San Diego. He had been found in possession of a small amount of methamphetamine at a local park, a crime that had been considered a felony on the morning of his Nov. 4 sentencing hearing but by nightfall would be reclassified to a misdemeanor. Instead of facing more than a year in jail or in a residential drug treatment program, Rabenberg delayed his sentencing so he would be looking at the prospect of a small fine, some probation and his immediate release.

“The ideal example of a Prop 47 case,” a public defender had written in a motion to delay sentencing, because Rabenberg had no history of violence and had never been convicted of selling drugs. He had moved to California a decade earlier from Illinois, lost his job in construction, become addicted to meth, lost his house and then been caught several times with drugs. He was sick and sometimes trying to get better, and a few months earlier he had posted a message on his Facebook page. “Saving money, working, going to meetings, clean over 100 days and feeling good,” he had written. “Time for James to do James.”

The new consensus in California and beyond was that it was the role of the criminal justice system to give him that chance.

“This is about putting compassion first,” San Diego’s recently retired police chief said when Prop 47 passed. “We cannot solve crime by warehousing people.”

“Releasing some nonviolent offenders is the smart thing to do,” said Newt Gingrich, a 2012 GOP presidential candidate, explaining the conservative perspective.

“We cannot incarcerate our way out of a drug problem,” said Sen. Rand Paul (R-Ky.), explaining the libertarian perspective.

“It is abundantly clear that America needs a new strategy,” President Obama had said, in a speech about the failures of mass incarceration, and now California was beginning the country’s largest experiment yet as the judge decided Rabenberg’s sentence.

A $700 fine and three years probation, the judge announced at Rabenberg’s rescheduled hearing  in early December.

“You’re free to go, Mr. Rabenberg,” he said. “Please consider this an opportunity. Good luck. I hope we don’t see each other again.”

1. Feb. 6: James Rabenberg was arrested for possessing drug paraphernalia near 4040 30th St.
2. Feb. 19: Rabenberg was arrested on a drug charge near the 2500 block of Albatross Street.
3. March 8: Rabenberg was arrested on a drug charge in the 1900 block of Adams Street.
4. April 1: Rabenberg was arrested in the early evening in the 400 block of Cedar Street.

Off came the county-issued jumpsuit, off came the handcuffs and out Rabenberg went into a state where so many other people were being granted new opportunities, too. In the 11 months since the passage of Prop 47, more than 4,300 state prisoners have been resentenced and then released. Drug arrests in Los Angeles County have dropped by a third. Jail bookings are down by a quarter. Hundreds of thousands of ex-felons have applied to get their previous drug convictions revised or erased.

But along with the successes have come other consequences, which police departments and prosecutors refer to as the “unintended effects”: Robberies up 23 percent in San Francisco. Property theft up 11 percent in Los Angeles. Certain categories of crime rising 20 percent in Lake Tahoe, 36 percent in La Mirada, 22 percent in Chico and 68percent in Desert Hot Springs.

It’s too early to know how much crime can be attributed to Prop 47, police chiefs caution, but what they do know is that instead of arresting criminals and removing them from the streets, their officers have been dealing with the same offenders again and again. Caught in possession of drugs? That usually means a misdemeanor citation under Prop 47, or essentially a ticket. Caught stealing something worth less than $950? That means a ticket, too. Caught using some of that $950 to buy more drugs? Another citation.

“It’s a slap on the wrist the first time and the third time and the 30th time, so it’s a virtual get-out-of-jail-free card,” said Shelley Zimmerman, who became San Diego’s police chief in March 2014. “We’re catching and releasing the same people over and over.”

Officers have begun calling those people “frequent fliers,” offenders who knew the specifics of Prop 47 and how to use it to their advantage. There was the thief in San Bernardino County who had been caught shoplifting with his calculator, which he said he used to make sure he never stole the equivalent of $950 or more. There was the “Hoover Heister” in Riverside, who was arrested for stealing vacuum cleaners and other appliances 13 different times over the course of three months, each misdemeanor charge followed by his quick release.

There was also the known gang member near Palm Springs who had been caught with a stolen gun valued at $625 and then reacted incredulously when the arresting officer explained that he would not be taken to jail but instead written a citation. “But I had a gun. What is wrong with this country?” the offender said, according to the police report.

And then, in San Diego, there was Rabenberg, who just weeks after being released because of Prop 47 was caught breaking the law again.

He was arrested for possession of meth on Jan. 2 and released from jail Jan. 3.

He was arrested for having drug paraphernalia on Feb. 6 and issued a citation.

He was arrested again for having drugs on Feb. 19. And then again on March 1. And then again on March 8. And then again on April 1.

By April 26, he had been arrested for six misdemeanors in less than four months and been released all six times, so he was free to occupy a table outside Starbucks when a man named Kevin Zempko arrived to have coffee with his wife. Zempko sat at a table next to Rabenberg, who was picking apart the seams of his coat and dumping the contents of his pockets onto the table: some nickels, two $1 bills, a few scraps of paper, a dingy plastic cup and a lighter. Zempko watched for a few seconds and concluded that Rabenberg was probably a vagrant and an addict. “I just felt bad for him,” he said.

Rabenberg noticed Zempko looking his way and began to stare back, mumbling, gesturing, standing up and now pulling something new from the pocket of his coat. It was a small wooden steak knife. Rabenberg slammed it down on the table. He picked it up again, jabbed at the air and started moving with the knife toward Zempko, who stood up and placed a chair between them.

Zempko had been in the Marine Corps for 11 years, trained to recognize a threat, and he escaped into the Starbucks and warned other customers. The manager called the police. Another Starbucks employee tried to pacify Rabenberg with a free cup of coffee. By the time two police officers arrived, Rabenberg seemed mostly confused and tired. “Disoriented” was how a police report described him. The officers handcuffed Rabenberg and placed him in the back of their police car.

“What will happen to him?” Zempko asked, because now the threat had passed and what he felt most was concern for Rabenberg, even guilt.

“He needs help,” Zempko told the officers, and they asked for his phone number and said they would call as part of their investigation. For a few days, Zempko waited and wondered: If they asked him to testify, would he push for leniency or a strict sentence? Which would be better for the city? Which would be better for Rabenberg?

But the police never called. The arrest had been for possession of drugs and brandishing a deadly weapon — both misdemeanors. Rabenberg was booked into jail and released three days later.

Kevin Zempko was sitting near James Rabenberg outside this Starbucks on April 26 when the homeless man became agitated, pulled a small knife from his pocket and started moving toward Zempko, who was able to avert the threat. After police arrested a “disoriented” Rabenberg, he was booked into jail and released three days later.

“What are we supposed to do here?” asked Jan Goldsmith, the San Diego city attorney. “How do we end this cycle?”

He was sitting at the conference table in his downtown office, trying to solve the problem that had been troubling him for months. His staff was in charge of prosecuting all misdemeanors in San Diego, and now it was dealing with dozens of people like Rabenberg, frequent fliers who no longer overcrowded the prison but whose cases continued to clog the courts. “How can we change behavior when they know there’s no real threat of punishment, no incentive?” Goldsmith wondered.

He had liked many of the theories behind Prop 47: a system designed to be merciful, with more emphasis on treatment and fewer jail sentences. These were ideas he had once pursued himself.

He had served as a judge before becoming the city’s top prosecutor, and for a while he had presided over San Diego’s alternative drug court. That was a system that seemed intuitive to him — a logic he could easily explain to addicts from the bench. Get caught with drugs once and maybe you would only get charged with a misdemeanor. But by the second time, or certainly the third, the charge became a felony and most offenders were faced with a choice: Go to state prison or participate in drug court, which usually meant at least 18 months of mandatory drug testing, treatment and supervision under the constant threat of prison time. Many chose drug court and entered into treatment. Sixty percent of those who enrolled graduated. Seventy percent of graduates stayed out of trouble for at least three years.

“I don’t know many addicts who magically wake up and say, ‘Hey, I want help,’ ” Goldsmith said. “They have a terrible, horrible disease. They’re addicted to drugs. Often times, they’re stealing to buy those drugs. You need consequences. They don’t get better on the honor system. You need to nudge them, shove them, kick them in the door.”

But now more addicts were declining drug court, because spending a few days in jail on a misdemeanor charge was easier than 18 months of intensive rehab. Without the threat of a felony, there was little incentive to get treatment. Drug court programs had closed in Fresno and Riverside. Enrollments had dipped by more than a quarter in many places across the state. Rabenberg had been offered drug court three times and always declined, choosing instead to plead guilty to a misdemeanor. California had promised to use some of the savings generated by Prop 47 for drug treatment. But that money wouldn’t be available until 2016, which to Goldsmith seemed like a long time to wait.

Rabenberg was arrested again May 29 with meth while panhandling near Balboa Park.

“Frustrating, frustrating,” said Zimmerman, the police chief, speaking not just about Rabenberg but all frequent fliers. “Just sending our officers to deal with problems that never get solved.”

He was arrested again for drugs July 4.

“We are enabling this kind of behavior,” said Bonnie Dumanis, the district attorney for San Diego County.

He was arrested again July 29 and Aug. 9.

“Aren’t we lulling him into a sense of security?” Goldsmith said. “How does it end? There’s no more incremental punishment. We let the behavior continue. We let the problems get worse. And all we can do is wait until he does something terrible, until he stabs somebody or kills somebody, and then we can finally take him off the street.”

San Diego City Attorney Jan Goldsmith’s office is in charge of prosecuting all misdemeanors in the city, including Proposition 47 cases.

There was another possible outcome for Rabenberg, too — one that was sending his mother, Denise Klemz, to visit a psychiatrist each month in Joliet, Ill., prompting her to hire a private investigator, compelling her to look up phone numbers in San Diego for the police station, shelters, hospitals and the morgue. “Is he dead?” she would sometimes ask people about her son, whom she had been trying to locate for more than three years.

“A big­hearted, free-spirited type person” was how she sometimes described him in those phone calls to San Diego, because for a while after high school his life had been going pretty well. He had gone backpacking through Yellowstone National Park, moved in with a girlfriend and taken a job at the Illinois Tollway. Then he had crashed his car after a party and sent one of his passengers through the windshield. The passenger had survived, barely, but Rabenberg was never the same. He had started regularly using cocaine, Klemz said, and then he caught hepatitis C by sharing needles in Chicago.

She had sent him to live with her brother in California in the late 1990s, and that was the last time she had seen him. Her brother had kicked Rabenberg out when he started using meth, and for the past dozen years, Klemz suspected that her son had been mostly homeless. He had called her one time, after his grandmother died, asking her to send money for a bus ticket home. She had offered to send him the bus ticket instead, because she didn’t trust him with money. “Don’t bother,” he had told her, and they hadn’t spoken since.

She had an old cellphone number for him, and even though she knew the phone had been shut off, she still sent him a text message every few days, just in case. “Please come home,” she wrote. “I’m sorry.” “Are you safe?” “Starting to get cold here. Is it cold there?”

The private investigator had taught her how to type Rabenberg’s name into the San Diego jail database to see whether he was in custody. A few times she had seen his name in the arrest logs and felt some measure of relief. Maybe he would be forced to detox. Maybe he would get help. She had called the jail once to inquire about visiting him, or writing a letter, but by the time she reached a receptionist, she was told that Rabenberg had been released. He had not left an address or a phone number, so she sent another message to the number she already had.

“What’s happening to you?” she had written.

From the outreach workers’ van, which is painted with the slogan “Where Miracles Happen,” Carlos Juarez talks with homeless man, Chris Wallace, on a street in San Diego. | Larissa Wimberly, one of the three outreach workers whose salaries are being paid by a downtown business association, fills out a form for Paul Gaston. | As he encourages the homeless to move away from business storefronts, Cain Mariscal checks on the well-being of “Dollar Man,” the nickname for one of the outreach workers’ regulars.

No one knew, and under Prop 47, nobody had a compelling reason to find out. The reality was that no one was really looking for Rabenberg at all, except for three nonprofit workers who had recently begun driving loops through the sprawling parks and homeless encampments of San Diego.

Their salaries were being funded in part by a downtown business association to address problems created by the homeless population, which had increased noticeably since the passage of Prop 47. More than 1,200 fewer people were in the local jail each night. Meanwhile the number of unsheltered homeless people in downtown San Diego had grown 24 percent based on the city’s latest count, and more than 8,000 homeless people stayed in the city on any given night. The city estimated that a third of those people were chronic substance abusers. Emergency room visits for drug overdoses had begun to tick up. Assaults on police officers had risen by more than half in precincts with high homeless populations. So local businesses had pooled together $50,000 to hire three outreach workers, all formerly homeless themselves, to deal with the problems of frequent fliers in a system that no longer could.

They patrolled the neighborhood in a van painted with the slogan “Where Miracles Happen” and moved drug users away from businesses and back into the hidden canyons of Balboa Park. They offered rides and free food to addicts who were loitering or harassing customers outside the 7-Eleven.

“We used to call the police, but they don’t want to waste all their time writing tickets,” said Larissa Wimberly, one of the outreach workers. “We just try to handle it.”

They had built relationships with many of the homeless people, and they knew about Rabenberg, too. He had filled out one of their enrollment forms a while back, asking for help, and he had even checked himself into a treatment facility once before bailing after three days. Now they sometimes saw him straggling around the Hillcrest neighborhood, always in the same jeans and sweatshirt, or staying in a tent behind the manicured lawn bowling facility in Balboa Park. “A regular,” they called him, and on this day they saw many of their regulars, who they referred to by nicknames.

There was Dead Leg limping up the sidewalk, and Cry Baby complaining about the heat, and Dollar Man panhandling at the Starbucks. The van stopped at a major intersection where some homeless men were pushing along shopping carts in the middle of busy roads. “You can’t be doing this stuff right here,” Wimberly told them, suspecting that they were high. After that, the workers responded to a call about an “aggressive panhandler” at a local craft market. “You’re scaring these people,” Wimberly told the man.

They drove seven loops through downtown until it started to get dark. They saw dozens of tents scattered in the unincorporated canyons, too far from any road to approach. They passed an encampment of 200 people near the freeway, a group so notorious for theft and drug use that police had warned outreach workers not to visit. Some people didn’t want help, Wimberly said. Others were beyond it. They drove back downtown as their shift ended.

“All we can do is deal with people who want our help or people who are causing problems,” Wimberly said, and on this day, at least, Rabenberg was neither of those.

5. May 29: Rabenberg was arrested on a meth charge near University Avenue at Park Boulevard.
6. July 4: Rabenberg was arrested for drug possession in an alley east of Illinois Street.
7. Aug. 9: Rabenberg had drugs impounded during his arrest in an alley west of Louisiana Street.
8. Aug. 28: Rabenberg was arrested for possession of meth in the 3900 block of Texas Street.

On Aug. 14, he was arrested for failing to appear in court on two drug charges. He was released Aug. 18.

On Aug. 28, he was arrested for possession of meth and then released Sept. 1.

On Sept. 19, he was due to appear in court for a hearing on three of his cases. A note on his file read, “Enough!” because Rabenberg had now been arrested 13 times.

He had failed to appear in court seven times. He had threatened the public safety. He had endangered his own health. “Who exactly is benefiting here?” said Goldsmith, the city attorney, who hoped that the judge would compile Rabenberg’s misdemeanors into one sentence and force him into an extended jail term or at least drug treatment.

Now the clerk called the courtroom to order. Lawyers wheeled in carts of alphabetized files. The judge announced the beginning of another busy docket in the era of Prop 47.

“Mr. Rabenberg,” the judge said, calling out the next case.

“Mr. Rabenberg,” he said again.

“Where is Mr. Rabenberg?” the judge asked, finally, but wherever Rabenberg was, he wasn’t here.

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