Crim­i­nal jus­tice in the leg­isla­tive ses­sion

Marysville Appeal-Democrat - - Front Page - By David Wil­son dwil­son@ap­pealdemo­crat.com

De­pend­ing on who you’re talk­ing to and who they work for, Cal­i­for­nia’s most re­cent leg­isla­tive ses­sion was either a disas­ter for public safety or re­sulted in progress in crim­i­nal jus­tice re­form.

The ses­sion ended on Sept. 13 with sev­eral bills wait­ing to either be signed into law or ve­toed by Gov. Gavin New­som. The gov­er­nor has un­til Oct. 13 to sign or veto bills.

Yuba County Dis­trict At­tor­ney Clint

Curry said 2020 con­tin­ued the trend over the last decade of the Demo­cratic Party dis­man­tling the crim­i­nal jus­tice sys­tem. He said that started in 2011, with AB 109 and “re­align­ment,” which at­tempted to solve Cal­i­for­nia’s over­crowd­ing in pris­ons

by mov­ing non­vi­o­lent of­fend­ers to county jails and changed the pa­role sys­tem by hav­ing su­per­vi­sion of re­leased in­mates done by the coun­ties.

In ad­di­tion, Propo­si­tion 47 re­duced penal­ties for drug pos­ses­sion and theft of less than $950 to mis­de­meanors and Propo­si­tion 57 al­lowed pris­ons to re­lease vi­o­lent felons be­fore serv­ing their full sen­tence, ac­cord­ing to Curry.

“The re­sults of th­ese failed lib­eral poli­cies can be seen all over the state, where many ‘low-level’ of­fenses just go un­pun­ished, and men­tally ill ad­dicts line the streets and parks in makeshift en­camp­ments,” Curry said in an email.

He said in this ses­sion, the COVID-19 pan­demic was used to limit ac­cess to law­mak­ers and that many bills were not heard in the public safety or ap­pro­pri­a­tions com­mit­tees.

“To say I am very dis­ap­pointed with our Demo­cratic-con­trolled leg­is­la­ture is an un­der­state­ment – they have be­come com­pletely un­moored from re­al­ity, and aban­doned even the pre­tense of car­ing about sound pol­icy, choos­ing in­stead to pass half­baked leg­is­la­tion solely to prove their so­cial jus­tice wo­ke­ness,” Curry said. “Make no mis­take about it, their naïve or ma­li­cious goal is to com­pletely elim­i­nate the crim­i­nal jus­tice sys­tem.”

Curry’s coun­ter­part in Sut­ter County agreed with his as­sess­ment.

“The Cal­i­for­nia Leg­is­la­ture is sys­tem­at­i­cally and in­ten­tion­ally re­mov­ing the abil­i­ties law en­force­ment of­fi­cers and pros­e­cu­tors have to pro­tect their com­mu­ni­ties and en­force public safety,” Sut­ter County Dis­trict At­tor­ney Amanda Hop­per said in an email. “The state gov­ern­ment seems to be more con­cerned with tak­ing away the ba­sic lib­er­ties of law-abid­ing peo­ple than they are with pro­tect­ing so­ci­ety from crim­i­nal­ity.”

Lizzie Buchen is the Crim­i­nal Jus­tice Pro­gram direc­tor for the Amer­i­can Civil Lib­er­ties Union of North­ern Cal­i­for­nia.

She said there were some pos­i­tives to come out of the ses­sion, but that the Leg­is­la­ture missed an op­por­tu­nity to make sig­nif­i­cant change in the area of po­lice re­form.

“I think it’s a bit of a mixed bag,” Buchen said.

Some of the im­por­tant wins from the ACLU’S per­spec­tive are bills hav­ing to do with root­ing out dis­crim­i­na­tion of many forms from the crim­i­nal jus­tice sys­tem in Cal­i­for­nia. One is AB 3070, which would pro­hibit an at­tor­ney from us­ing a peremp­tory chal­lenge to re­move a prospec­tive ju­ror on the ba­sis of race, gen­der, gen­der iden­tity, sex­ual ori­en­ta­tion, na­tional ori­gin, re­li­gious af­fil­i­a­tion or the per­ceived mem­ber­ship of a prospec­tive ju­ror to any of those groups.

Buchen said if passed, it would pre­vent the “white­wash­ing” of jury boxes, the process of ex­clud­ing peo­ple of color in or­der to have a bet­ter chance of con­vict­ing a de­fen­dant. She said pros­e­cu­tors will no longer be able to use the style of some­one’s hair as a rea­son to ex­clude them.

Curry said the idea be­hind the bill is laud­able but that the re­quire­ment to not ex­clude peo­ple from a jury based on race and other fac­tors is al­ready present in fed­eral law. He said the bill was de­signed to hand­i­cap pros­e­cu­tors.

An­other bill await­ing New­som’s sig­na­ture, which Buchen men­tioned as be­ing a pos­i­tive step in the right di­rec­tion is AB 2542. It would pro­hibit a judge from us­ing race as a rea­son to give a harsher sen­tence. In ad­di­tion, those con­victed would be given more of an op­por­tu­nity to chal­lenge a court’s de­ci­sion about a con­vic­tion af­ter a case is closed.

Curry said the bill “will al­low peo­ple to lit­er­ally get away with mur­der.” He said if an of­fi­cer ex­hib­ited racial bias against some­one con­victed of an of­fense, the case would have to be re­versed re­gard­less of the ev­i­dence. In ad­di­tion, the bill is vague in how it will be ap­plied, ac­cord­ing to Curry. It says that a de­fen­dant charged or con­victed of a more se­ri­ous of­fense than a de­fen­dant of an­other race that com­mits a sim­i­lar of­fense, would have his or her con­vic­tion over­turned. Curry said “more se­ri­ous” and “sim­i­lar” are not de­fined in the bill.

AB 3234 would cre­ate a court-ini­ti­ated mis­de­meanor di­ver­sion pro­gram where a judge could rule over a pros­e­cu­tor’s ob­jec­tion that a per­son con­victed of a mis­de­meanor could en­ter into a re­ha­bil­i­ta­tion pro­gram in­stead of serv­ing time in prison. In ad­di­tion, if the pro­gram is suc­cess­fully com­pleted, the ar­rest upon which the di­ver­sion was im­posed will be re­moved from the per­son’s record.

“We have seen that in­car­cer­a­tion is not very ef­fec­tive if your goal is public safety, if your goal is to ac­tu­ally help peo­ple,” Buchen said.

It also low­ers the age for el­der pa­role el­i­gi­bil­ity from 60 to 50 years old and time served from 25 to 20 years. Buchen said it is the court hav­ing the au­thor­ity to rule on di­ver­sion that has led the Cal­i­for­nia Dis­trict At­tor­neys As­so­ci­a­tion to op­pose the bill.

“This is not a rad­i­cal idea at all,” Buchen said. “This is a judge that makes this de­ci­sion ... They (pros­e­cu­tors) can­not stand for any of their power be­ing taken away.”

Curry said di­ver­sion is ap­pli­ca­ble in some cases and not ap­pro­pri­ate in oth­ers.

“De­fen­dants who have lived a life of crime have earned their crim­i­nal re­sume and proven they are not amenable to tools such as di­ver­sion,” Curry said. “Driv­ing un­der the in­flu­ence of­fenses are a great ex­am­ple of an of­fense that should never be di­verted.”

Ac­cord­ing to the bill, mis­de­meanors that can­not be di­verted in­clude any of­fense that a de­fen­dant would have to reg­is­ter as a sex of­fender, do­mes­tic vi­o­lence, or stalk­ing.

Curry called the ex­pan­sion of el­derly pa­role “an even grosser mis­car­riage of jus­tice” us­ing the ex­am­ple of a per­son sen­tenced to 100 years to life in prison at age 30 be­ing el­i­gi­ble to have a pa­role hear­ing at age 50.

“When a de­fen­dant is sen­tenced to decades in prison – they’ve earned it,” Curry said. “They’ve earned ev­ery minute.”

Buchen said SB 731, which would have al­lowed for po­lice of­fi­cers to be de­cer­ti­fied if they com­mit­ted a crime or se­ri­ous mis­con­duct and SB 776, which would have pro­vided more trans­parency around po­lice mis­con­duct, were not passed.

“Over­all, it was def­i­nitely a dis­ap­point­ment,” Buchen said.

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