Rosen says he’ll no longer charge death penalty
Says he’ll also revamp other charging criteria, tackle racial inequality, closely watch police
SAN JOSE >> Dropping the death penalty, closely watching police misconduct and backing away from prosecuting minor crimes highlight an array of reforms that Santa Clara County District Attorney Jeff Rosen says he is instituting in the wake of the police killing of George Floyd.
Rosen announced his reform agenda Wednesday, headlined by his decision to no longer pursue the death penalty. That marks a dramatic pivot for him.
“Over the years, I’ve become disillusioned with it,” Rosen said in an interview. “It takes a massive amount of resources from our office and the Public Defender’s Office, the cases drag on for years and years and there’s no finality.”
In the four cases Rosen’s office has charged with the death penalty, he rescinded it twice, and in the other two cases, juries rejected the death penalty through acquittal or at sentencing. Rosen said the last straw for him was watching the nowhistoric video of the police killing of George Floyd:
“I just said, I’m done, I’m not charging the death penalty,” he said.
Public Defender Molly O’Neal applauded Rosen’s decision.
“We are thrilled to see that the district attorney is abandoning further death penalty prosecutions and knows that justice is better served without the state engaging in killing for the sake of showing that killing is wrong,” she said.
When asked if his office will move to downgrade existing Santa Clara County death penalty sentences, Rosen said Gov. Gavin Newsom’s ongoing moratorium achieves that, but if it were lifted, he would support converting the county’s death sentences to life without parole.
Ellen Kreitzberg, a Santa Clara University law professor and death penalty expert, said Rosen’s “clear acknowledgement of the racial injustice within the system is a necessary first step to be able to implement real reform.” She also commended Rosen’s death penalty shift but said she wants to see him go ahead with corresponding resentencing.
“Since the moratorium is, by definition, a temporary status, we hope the DA will consider changing the sentences of those already on death row from Santa Clara County,” she said.
The reform plan also creates a new Public and Law Enforcement Integrity Team, tasked with supplementing police departments’ internal affairs units and in San Jose and Palo Alto, the independent police auditor’s office. It is an expansion of the existing public integrity unit that handles criminal misconduct by government officials.
San Jose Police Chief Eddie Garcia said he needs to learn more about the new system and how it would differ from an existing ad hoc system in which internal affairs investigators and prosecutors work together to refer misconduct cases that could warrant criminal prosecution.
Rosen said his office also is moving away from filing stand-alone resisting arrest charges absent other alleged crimes. Earlier this week, O’Neal called for similar action in San Jose, arguing that resisting arrest is a largely discretionary charge that allows officers to mask misconduct.
Before Rosen’s news conference even began Wednesday, the San Jose Police Officers’ Association lambasted that policy change.
“Jeff Rosen has just issued an open invitation to every drunk driver, criminal and violent gang member to resist arrest, impede investigations and openly challenge every police officer in our county,” union President Paul Kelly said in a statement.
Garcia took a more diplomatic tack.
“I have extreme respect for Jeff Rosen, and reasonable minds can disagree,” he said. “If my officers need to make an arrest for someone delaying, obstructing or resisting, I’m not going to take that tool from them. Arrests are based on the penal code and behavior, not whether we think charges will be filed.”
Rosen on Wednesday also said his office is “rewriting” its charging formula, including moving away from routine charging enhancements based on a defendant’s criminal history.
“Some people have a longer rap sheet based in part on systemic racism,” Rosen said. “It should be about what should we charge, not what can we charge.”
That struck a particular chord with O’Neal.
“This signals an intention to charge only what is fair and warranted, not what will result in squeezing the most jail time out of what are usually brown and black members of the community,” she said.
The DA’s Office now will accept defendants’ social history information from public defenders, defense attorneys and other parties to mitigate early charging decisions, Rosen said. The Public Defender’s Office and Silicon Valley De-Bug have worked on their own to provide that information at a defendant’s arraignment.
In the same vein, Rosen said his office will stop filing gang enhancements for misdemeanor crimes absent “extraordinary public safety concerns.”
Rosen’s plan also includes ceasing collecting fines and fees from indigent defendants and treating as traffic court infractions the 4,000 annual misdemeanor cases of when someone is driving on a suspended license for failing to pay fees.
Other components of the DA reform plan announced Wednesday include:
• Automatically expunging criminal records upon completion of probation, for eligible crimes, typically misdemeanors
• Community outreach initiatives including creating a DA citizens academy at community colleges; extending victims services to community-based organizations; and directing asset forfeiture funds to those community groups
• Requiring all prosecutors to participate in conviction integrity review, jail and prison visits, police ride-alongs, and going out with community groups