My last two days in court, I observed a couple of interesting things that relate to recent reforms in the criminal justice system, as well as the changing views on crime and punishment.
On Friday, I watched an individual cop a plea to a misdemeanor drug charge. The defendant was sentenced to go through the PC 1000 program (Penal Code sections 1000-1000.6, the drug diversion program). The defendant pled guilty, understanding that if she did not successfully complete the PC 1000 program, she would be resentenced to the misdemeanor charge and would serve a year in the county jail.
Today, an individual copped a plea to the sheet (to all charges), over the objections of the district attorney. In this case, the individual accepted a split sentence of three years, meaning half the term would be served in county jail and the other half out of custody, but under mandatory supervision. This is a big change under AB 109, the realignment of the prisons.
The district attorney in this case vehemently disagreed with the charge. The defendant in this case had seven total convictions of driving under the influence. In this case. not only was the defendant pulled over by police, but refused to yield, led the police on a mile-long chase, refused to cooperate, and had to be Tased three times.
The DA argued that this guy is going to continue to re-offend and someone is going to die. She argued for a straight prison term.
Judge David Rosenberg, however, had a different view. He stated that if he gave the defendant a straight sentence – and he agreed that the defendant’s conduct and record were “poor” – that he would have to be released immediately upon serving the time. He felt he would be turned loose to re-offend. He stated that, at least with mandatory supervision, there will be a chance he can get the help he needs and he would be released after a year and a half under strict supervision.
The Impact of Prop. 47 on Drug Court
On the first issue, the point here is not to pretend that my anecdotal observation will trump empirical studies – and it is way too soon, in my view, for the empirical studies to have much merit. We are really in month three of the post-Prop. 47 world.
The Los Angeles Times on December 13, 2014, noted that, at the heart of the drug court program, lies “the threat of a felony sentence if participants flunk out.”
The article continues, “That threat was sharply reduced last month when California voters approved Proposition 47. The measure turned several felonies, including drug possession, into misdemeanors, reducing their maximum punishments from several years to up to a year in jail. Since 2011, many nonviolent-felony sentences are served in county jails.
“With jails in L.A. and other California counties releasing inmates early after serving only a fraction of their sentences, many drug defendants are looking at spending weeks behind bars for a misdemeanor,” they write. And many believe that some of the graduates would not have agreed to the drug program without the threat of a “felony hanging over your head.”
The question is whether you can make such a program work for defendants with only misdemeanors hanging over their heads and time in local custody. I guess we will see.
As I argued back in November, though, there are other ways to approach rehabilitation besides threat. My hope is that local authorities will look outside of the box for approaches to treating drug addiction.
The Times article interviews LA Deputy Public Defender Mark DeWit. He has an interesting and nuanced take on Prop. 47, calling the impact on drug courts the “largest unintended consequence.” Many of his clients, he argues, will take even a year in jail because they believe they’ll get early release due to jail overcrowding.
He also voted for Prop. 47, calling it “a touch medieval” to incarcerate addicts in state prison and noting that the drug court only serves “a small sliver of the population that needs help.”
Thoughts on Crime and Punishment
Judge David Rosenberg gave us some rare insight into the thinking of a judge on issues of crime and punishment. With the advent of mandatory minimum sentencing and strict sentencing guidelines, a lot of judicial discretion has been taken away over the years.
In fact, many people, myself included, would argue that the prosecutor rather than the judge is the most powerful actor in the legal system. A prosecutor decides whom to charge and with what – they are the gatekeepers. They still have to convict, but in terms of single actors, prosecutors are much more powerful than the judge.
But with the rise of AB 109 and now Prop. 47, that is changing a little. There is an acknowledgement that the system of incarcerating for long sentences does not work. The recidivism rate in California is the highest in the country.
The defendant in the case I observed yesterday was not sympathetic. He had seven, yes that’s right, seven separate DUIs, including the current case where he resisted arrest, took the police on a pursuit, required Tasering and refused to comply with a screen for controlled substances.
He did this despite suspended licenses and other controls. So I think the DA was right to say that this individual was a danger to society and, sooner or later, someone was going to die.
But the question at hand was an AB 109 artifact – a straight prison term (which would be served locally) or a split sentence. Split sentencing occurs under Penal Code 1170(a)(5). When the sentence is split, part of the sentence is served in custody and part of the sentence is served outside of custody during a period of post-release mandatory supervision by the probation department.
Here is where we get into philosophy which seemingly is rarely articulated in our local courts. The DA’s office naturally and understandably believes that the best course of action is the strictest sentence – keep the person in custody to protect the public.
But Judge Rosenberg reasoned (it was his explanation of his ruling) that if they gave the defendant straight jail time, the defendant would be released and that would be it. He would not have any external supervision. And so, while Judge Rosenberg was sympathetic to the prosecutor’s concerns and stated that the individual’s prior record was poor, he believed that the best course of action was the split sentence where he would be under supervision by the probation department for a year and a half.
Tacit in that explanation was the belief that prison time (whether locally served or not) was not going to change this individual’s behavior. We need to have programs on the outside to be able to help actually correct the behavior.
—David M. Greenwald reporting