San Jose lawmaker questions whether measures led to rise in rapes

San Jose lawmakers during a recent meeting peppered police with questions about the sharp rise in rapes citywide, but Councilmember Johnny Khamis had a request — study how a pair of controversial state measures might have contributed to the increase.

Proposition 47, approved in 2014, redefined several nonviolent crimes as misdemeanors, and Proposition 57, approved in 2016, prioritized parole for nonviolent offenders who served their full sentences in California prisons and reduced sentences for good behavior.

Both propositions have come under fire by politicians and police officials who claim reducing certain felonies to misdemeanors and releasing prisoners early has led to an increase in crime.

The propositions are often tied into anecdotes about recidivism, cases in which former prisoners once again commit crimes when released from incarceration.

Some argue that Proposition 57 redefined sex offense crimes into nonviolent offenses, and has made it easier for sex offenders to be released from prison.

A lawsuit from The Alliance for Constitutional Sex Offense Laws in 2018 against the California Department of Corrections challenged excluding sex offenders from having early parole hearings.

According to court documents, ASCOL argued that the plain text of the bill did not define a “nonviolent crime” and did not specifically exclude sex offenders from early parole.

At the Superior Court of California in Sacramento County, Judge Allen Sumner sided with ASCOL, and advised the state to revise the definition. The eased access to early parole for sex offenders has pushed Khamis and others to demand more research on the propositions’ effects.

Khamis’ suggestion sparked a brief debate during a recent public safety committee meeting.

Some elected leaders said they’d rather spend staff time studying why victims don’t report sexual assault and whether overcrowding in homes due to Silicon Valley’s housing affordability crisis played a role in the increase.

“I felt that it was, at a minimum, as equally important to look at recidivism as looking at overcrowding,” Khamis said. “In fact, I think recidivism has a lot more to do with repeat crimes of rape than overcrowding.”

However, research on the effects on Proposition 47 doesn’t appear to support a correlation between the measure and a rise in sexual assaults.

According to a study published by two researchers from UC Irvine, rapes went down because of Proposition 47.

Charis Kubrin, a professor of criminology, law and society, compared crime rates in California under Proposition 47 to those in similar states without such a measure.

“We’re approximating California by comparing it to other states that look like California but did not pass Prop. 47,” Kubrin said.

The researchers compared crime rates using stats from the FBI Unified Crime Report Part 1 Offense Frequencies, which include murders, rapes and aggravated assaults. “The rest of the states that looked like California experienced increases in their rape cases,” Kubrin said. “(In California) it caused rape to go down.”

But Kubrin was skeptical about the numbers despite the rigorous statistical comparison because rape is a “horribly” underreported crime.

Kubrin suggests policymakers evaluate the data before making claims about a rise in crimes, but says anecdotal evidence tends to form opinions among policymakers and police. “It’s irresponsible to make the claim with the absence of research,” Kubrin said. “Often I’d get statements from police officers saying, ‘I see it with my own eyes.’”

Kubrin agrees that the effects of both propositions demand a local study.

“We can’t speak about San Jose in particular because we did a statewide analysis,” Kubrin said, adding that he isn’t aware of any academic studies on Proposition 57.

Whether research about Proposition 47 and 57 in the Capital of Silicon Valley will come to fruition is uncertain.

If local police investigated the effects of the propositions, Chief Eddie Garcia would want to look at crimes beyond rape.

“It’s not necessarily just sexual assaults,” Garcia said during the meeting. “I would imagine that you’re going to want to see if people are committing burglaries or committing robberies.”

W. David Ball, an associate professor at Santa Clara University School of Law, said the type of crimes resulting from recidivism need to be outlined.

“Understand when people talk about recidivism, they’re not necessarily talking about recidivising the same thing,” Ball said. “A lot of recidivism is for different offenses — sexual offenders may be arrested for trespassing, crossing property lines.”

Still, Khamis believes both propositions need reform and said he’ll make it a central part of his campaign for state Senate.

“It’s a big motivating factor for me,” Khamis said. “I think the pendulum of justice has swung way too far to the side of the criminal.”

Contact San José Spotlight intern Mauricio La Plante at [email protected] or follow @mslaplantenews on Twitter.