Sen. Skinner Introduces Two Reform Bills in Response to Penal Code Revision Committee Report

February 9, 2021

State Sen. Nancy Skinner, D-Berkeley, announced the introduction today of two criminal justice reform bills in response to a new report from the state’s Committee on the Revision of the Penal Code. The committee, of which Sen. Skinner is a member, was appointed by Gov. Newsom and the Legislature to comprehensively examine California’s Penal Code and issue recommendations for reforming it.

The committee’s report outlines ten recommended areas for revising the penal code. Sen. Skinner has introduced two of the committee’s proposals as new bills. The first, SB 81, would reform the state’s use of sentencing enhancements, which add years to prison sentences but, based on widespread research, fail to improve public safety. SB 81 would create a set of guidelines for courts so that sentence enhancements would no longer be applied to nonviolent offenses and certain other cases unless a judge determines that the enhancements are necessary to protect public safety.

The other bill, SB 82, would update a 150-year-old statute that has allowed prosecutors to elevate a petty theft charge into felony robbery. SB 82 would establish a clear distinction between theft and robbery for cases when no deadly weapon was used and no one was seriously injured.

“Serving on the Committee on the Revision of the Penal Code gave me the opportunity to engage with experts and advocates to identify commonsense proposals for criminal justice reform.” Sen. Skinner said. “SB 81 sends a clear message to our courts: Sentence enhancements should be used judiciously, and only when the enhancement is necessary to protect the public. And SB 82 will help ensure that in the case of theft, the punishment meets the crime.”

The vast majority of people in California prisons — 80% — are serving a sentence term that includes extra time added on by a sentencing enhancement. In some cases, the amount of prison time added due to sentencing enhancements is five to 10 years or more — longer than the term for the underlying conviction. The committee’s report also noted that “enhancements are applied disproportionately against people of color and people suffering from mental illness.” Research reviewed by the Penal Code Revision Committee showed no evidence that the proliferation of sentencing enhancements in California has made the state safer.

At one of the committee’s hearings last year, former Governor Jerry Brown said California should “get rid of all of the enhancements” or change the penal code so that judges are steered toward not imposing enhancements.

Judges currently have the authority to dismiss most sentencing enhancements but rarely exercise that discretion, in part because California law does not provide clear guidance on what judges should do. The state Supreme Court has called the use of judicial discretion in sentencing enhancements an “amorphous concept.”

SB 81 addresses this lack of clarity on the use of enhancements by establishing a presumption that directs judges to not use sentencing enhancements — unless there is clear and convincing evidence that not applying the enhancement would result in endangerment to the public — in the following circumstances:

  • The underlying conviction involves a nonviolent offense or did not include a loaded firearm
  • Enforcing the sentencing enhancement would result in a disparate racial impact
  • The enhancement is based on a prior conviction that is more than five years old
  • The underlying conviction is connected to mental health issues or to prior victimization or childhood trauma
  • The defendant was a juvenile when they committed the underlying offense or prior offenses
  • Multiple enhancements are alleged in a single case or the total sentence is more than 20 years

Members of the Penal Code Revision Committee, which included judges, a law school dean, legislators, and others, discussed at length the need to reform California’s 150-year-old robbery statute, because it allows prosecutors to elevate petty theft charges into felony robbery cases. SB 82 was crafted in response.

“The Penal Code Revision Committee is absolutely correct: Petty theft, like shoplifting, should never be treated as felony robbery,” Sen. Skinner said. “California’s robbery statute hasn’t been updated since 1872. It’s time for us to make sure the punishment is proportionate to the crime committed.”

Under California’s robbery statute, a person who uses minimal “force” or is perceived to invoke “fear” during a petty theft can be charged and convicted of felony robbery and sentenced to up to five years in prison. The terms “force” and “fear” are often interpreted loosely. For example, someone accused of having made a verbal threat during a shoplifting incident, even when no force was used and no weapon was involved, can be charged with robbery. Likewise, if the person accused of shoplifting bumps into another customer or security guard while running out of the store, causing no serious injury, the charge can be elevated to robbery.

Data shows that robbery charges are much more likely when the shoplifter is a person of color. People experiencing a mental health crisis or who have a developmental disability also have a higher likelihood of having their charge include “force” or “fear.”

SB 82 would:

  • Create a new category of “petty theft in the first degree” for thefts under $950 that may involve force or fear but do not result in serious injury or involve the use of a deadly weapon. This new category would be punishable by up to one year in jail and/or a $1,000 fine
  • Categorize petty theft that does not involve force or fear as “petty theft in the second degree,” which remains punishable by jail time of up to six months and/or $1,000 fine
  • Prohibit either category of petty theft from being charged as robbery or burglary
  • Apply this change retroactively, allowing those convicted of robbery to apply for resentencing if they meet the criteria.

New York, Oregon, Illinois, and Texas are among the states that have enacted reforms similar to SB 82.

 

Sen. Nancy Skinner represents the 9th Senate District and is Senate majority whip, chair of the Senate Budget Committee, and vice chair of the Legislative Women’s Caucus.