From Felony to Misdemeanor: An Analysis of Decarceration

By Marisa Markowitz, LMSW, CASAC-T

Decarceration, loosely defined, is the removal of individuals from custodial supervision. The criminal justice system has a disparate web of prisons, jails, and mental health facilities that operate on local, state, and federal levels. When an individual is “decarcerated,” they are released from a legal operating entity that deems that the benefits of release outweigh the risk of diversion or recidivism.

There has been a decline in the number of individuals incarcerated in the United States. According to the Pew Research Center, there are approximately six million individuals incarcerated in adult correctional systems. The rate of incarceration decreased by 1% in 2019, and reached levels akin to 1996 in 2020. Despite a more recent increase in certain violent crimes, especially murder, violent and property crime rates have declined sharply in recent decades. Moreover, the Marshall Project found that over 100,000 were released from federal and state prisons due to the pandemic. To individuals unfamiliar with the criminal justice system, it’s important to unravel the benefits of release, the highlights of reparative services, and the voices that view decarceration as a threat to communal safety.

One of the benefits of release was a piece of legislation that pushed for a reduction in incarceration by classifying nonserious, nonviolent crimes as misdemeanors rather than felonies. Proposition 47, or “The Safe Neighborhoods and Schools Act,” was a referendum passed on November 5, 2014, by the state of California. Proposition 47 implemented three broad changes to felony sentencing laws. First, it reclassified certain theft and drug possession offenses from felonies to misdemeanors. Second, it authorized defendants currently serving sentences for felony offenses that would have qualified as misdemeanors under the proposition to petition courts for resentencing under the new misdemeanor provisions. Third, it authorized defendants who have completed their sentences for felony convictions that would have qualified as misdemeanors under the proposition to apply to reclassify those convictions to misdemeanors.

Proposition 47 was a major win for advocates of sentencing reform. Individuals who work for social service agencies that promote rehabilitation might argue that the criminal justice system imposes overly harsh sentences for relatively minor infractions. After Proposition 47 was enacted, California experienced a reduction in recidivism and generated more funding for community-based mental health services, education, and crime victim services. And while in California the shift has been enacted with enthusiasm, there are other agencies that maintain similar philosophies toward rehabilitation.

The Osborne Association, Fortune Society, and Innocence Project (among others) all work to provide services to formerly incarcerated individuals. Many eof their employees were formerly incarcerated themselves. They understand how challenging it may be to find gainful employment, documentation, health care, and education in a postincarcerated world. And while social workers in these settings advocate for sentencing reform, their work is largely confined to the provision of services upon reentry, nor prior to sentencing. The stamp of misdemeanor, rather than felony, may obviate the need for such robust services in the first place.

The Osborne Association works on both the front end (prevention) and the back end (advocating for less time spent incarcerated once sentenced for more serious crimes). Among its efforts, the association explores alternatives to incarceration, including mental health resources.

According to Susan Gottesfeld, executive vice president and chief program officer of The Osborne Association, serious crimes are the most pressing challenge. She notes that draconian sentencing can lead to people being incarcerated for more than 25 years.

The overarching goal is to reassess how society addresses crime, including serious and violent crime. “We need to sort out preventive actions, early diversion, and community investments to change the scope and the course of community violence, but we also need to change our responses to it,” Gottesfeld says. “We need to have constant reflection and a willingness to progress and shift as we evolve to be community investors, look at bias in prosecution practices and sentencing laws, and examine uneven investments across communities. We must shift to address inequities, provide strategic direction, and address more serious crimes.”

Another concern in the decarceration movement is federal oversight. According to a report by the US Department of Justice, judicial discrimination based on race, national origin, sex, color, religion, disability, age, pregnancy, familial status, and genetic information is a real problem. The Civil Rights Act of 1896, American with Disabilities Act of 1990, Fair Housing Act and Genetic Information Nondiscrimination Act of 1998, and Equal Employment Opportunity Commission all address discrimination. And yet, Black and Hispanic populations are overrepresented in the prison system. Moreover, approximately one out of four individuals incarcerated in state and prison jails have mental health problems. This makes rehabilitation, not recidivism, a more attractive option for those with minor criminal offenses.

Nonetheless, decarceration is not supported by all. Opponents decry a destabilized criminal justice system. Cashless bail policies, or the allowance of individuals to enter bail without the historical payment, are fodder for outlets that routinely scrutinize cashless bail policies as “gives free passes” for offenders without penalty. Considered “flight risks,” those who commit nonserious, nonviolent crimes might commit crimes while on bail. Some local law enforcement organizations found that Proposition 47 increased homelessness and property crime rates, although this has not been proven by reputable sources.

Adding to this heated debate, some crime experts have likened the cashless bail policy to “anarchy.” Kevin Kiley, Republican Assembly member, describes Proposition 47 as a disaster for public safety in California. Kiley is the author of AB-155, a piece of legislation that would repeal Proposition 47. (It did not pass.) The thought is that offenders are likely to repeat, rather than reduce, criminal activity.

Taken as a whole, the criminal justice system has historically considered nonserious, nonviolent crimes as felonies. Social workers in prisons, nonprofits, or who provide direct services are likely to favor rehabilitation and help those with offenses in therapeutic ways. As Kiley said, “What matters is people being safe in their communities. Knowing that their kids would be safe going to school.” While public safety is crucial, it’s important to ensure that a punishment fits its crime. Naturally, one cannot guarantee that this shift will prevent crime altogether. It does, however, provide an opportunity for those with nonserious, nonviolent crime to become law-abiding members of the community once again.

— Marisa Markowitz, LMSW, CASAC-T, studies the relationship between technology and its adverse effects on mental health, particularly for vulnerable populations. She can be reached at markowitzm1@gmail.com or 201-341-2619.