George Gascón, the San Francisco district attorney. Jim Wilson/The New York Times
SAN FRANCISCO — Twenty years ago, amid a national panic over crime, California voters adopted the country’s most stringent three-strikes law, sentencing repeat felons to 25 years to life, even if the third offense was a minor theft.
The law epitomized the tough-on-crime policies that produced overflowing prisons and soaring costs.
Now California voters appear poised to scale back the heavy reliance on incarceration they once embraced, with a measure that would transform several lower-level, nonviolent felonies into misdemeanors punishable by brief jail stays, if that, rather than time in a state penitentiary. The referendum on Nov. 4 is part of a national reappraisal of mass incarceration.
To its advocates — not only liberals and moderates, but also an evangelical conservative businessman who has donated more than $1 million to the campaign, calling it “a moral and ethical issue” — the measure injects a dose of common sense into a justice system gone off the tracks.
“Law enforcement has been on an incarceration binge for 30 years, and it hasn’t worked,” said George Gascón, the San Francisco district attorney and a former police chief who, bucking most of his counterparts around the state, is the main sponsor along with a former police chief of San Diego. For the large numbers of nonviolent offenders with mental health or substance abuse problems, Mr. Gascón said, “Incarceration doesn’t fix the problem.”
California has already been forced by federal courts to trim its prison population because of inhumane crowding, which it did mainly by sending more offenders to county jails. Two years ago, in a previous referendum, voters took the worst sting off the three-strikes law, shortening the sentences of those whose third crime was a minor one.
The new initiative would have wider effects, altering penalties for low-level theft and drug-possession crimes that result in felony convictions, and sometimes prison terms, for thousands of nonviolent offenders each year.
Proposition 47, as it is called, would redefine thefts, forgery and other property crimes involving less than $950, and possession for personal use of drugs including heroin and cocaine, as misdemeanors — punishable by at most one year in a county jail, and often by probation and counseling. The changes would apply retroactively, lightening the penalties for thousands already in prison or jails.
Not only would many offenders avoid the crippling mark of a felony record, but the expected savings to the state government of up to a few hundred million dollars per year would be earmarked for mental health and substance abuse treatment, for counseling of potential school dropouts and for victim services, in hopes of breaking the cycle of crime. (Counties would also save several hundred million dollars annually, according the state legislative analyst.)
The proposals here are modest compared with changes recently taken by other states to curb prison growth.
But Proposition 47 has drawn harsh attack from law enforcement officials, including most district attorneys and the association of police chiefs, which calls it “a dangerous and radical package” that will “endanger Californians.”
In a poll in September conducted by the Public Policy Institute of California, 62 percent of voters said they supported the initiative, and only 25 percent said they opposed it. Proponents like Mr. Gascón and Darrell Steinberg, the Democratic president pro tem of the State Senate, say this shows that the public is far ahead of timid legislators, necessitating the unusual step of a ballot initiative.
“People overwhelmingly say that we need to distinguish between violent criminals who belong in prison, and those who could serve their sentences in a much more cost-effective way for the taxpayers,” Mr. Steinberg said.
Gov. Jerry Brown has not taken a position on the measure.
But opinions could change, especially if the two sides mount television campaigns in coming weeks. One of the most outspoken opponents, Shelley Zimmerman, the chief of police in San Diego, has already gone on the offensive.
“Virtually all of law enforcement is opposed,” Chief Zimmerman said. “It’s virtually a get-out-of-jail-free card” for 10,000 felons, many with violent histories.
She and other opponents have zeroed in on two details: Stealing a gun worth less than $950 and possessing date-rape drugs would no longer be automatic felonies.
Mr. Gascón rejects her arguments. Those with violent records will not be released, he said.
Many other laws permit felony charges for a person holding an illegal gun, he added, and anyone who tries to use date-rape drugs in a sexual assault will be charged accordingly.
So far, supporters of the proposal have a large financial advantage, raising more than $4 million as of last week, half of which had been used to get the measure on the ballot, compared to less than $300,000 for the opponents, with most of that donated by a law enforcement officers’ association.
Large donations in support have come from the Open Society Policy Center, a Washington-based group linked to George Soros; the Atlantic Advocacy Fund, based in New York; Reed Hastings, the chief executive of Netflix; and Sean Parker, the former president of Facebook.
But the largest single donor is B. Wayne Hughes Jr., a conservative Christian businessman and philanthropist based in Malibu. In one of the most tangible signs yet of growing concern among conservatives about the cost and impact of incarceration, Mr. Hughes has donated $1.255 million.
Mr. Hughes said he had been inspired by the late Chuck Colson to start prison ministry programs in California, and that his firsthand contact with prisoners and their families convinced him that the current heavy reliance on incarceration is often counterproductive.
“This is a model that doesn’t work,” he said in an interview. “For the $62,000 cost of a year in prison, you can send three kids to college,” he said. “But for me, it’s not just about the money, it’s about our fellow citizens who are hurting.”
Mr. Hughes was joined by Newt Gingrich as co-author of an op-ed in The Los Angeles Times urging citizens to vote yes.
Even if Proposition 47 passes, California will still lag behind many other states, including some that are politically conservative, in reforms that have achieved prison cuts with no increase in crime, said Adam Gelb, director of the Public Safety Performance Project of the Pew Charitable Trusts. Just looking at the dollar threshold for theft or forgery felonies, he noted, Mississippi recently raised its cutoff to $1,000, and South Carolina to $2,000.
“This reform may be modest,” Mr. Gascón acknowledged. “But California led the way early on in draconian sentencing, and now I’m hoping that these reforms, too, will have an impact on the state and the nation.”
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