Pubdate: Sun, 11 Oct 2015
Source: Washington Post (DC)
Copyright: 2015 The Washington Post Company
Contact:  http://www.washingtonpost.com/
Details: http://www.mapinc.org/media/491
Author: Eli Saslow, in San Diego

IN CALIFORNIA, LENIENCY'S UNINTENDED EFFECTS

A New Law to Reduce Prison Crowding Keeps One Addict Out of Jail but 
Not Out of Trouble

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.

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 
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."

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 68 percent 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 - now misdemeanors under Prop 
47. Rabenberg 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."

Rabenberg 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."

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.

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 over doses 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.

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.
- ---
MAP posted-by: Jay Bergstrom