Criminal justice in the legislative session
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.