I have been reading the book by John Pfaff, Locked In, which seeks to explain mass incarceration, and he has an interesting data analysis pushing away from what he calls “the standard story” of the expansion of the war on drugs and increased sentencing. While I think he has good empirical support, I did find his account here a bit humorous.
He writes: “Although it is true that the official sentences as detailed in statutes have gotten longer, time actually served appears to have changed substantially less. Just because the legislature passes a law doesn’t mean that prosecutors will use it.”
He then quotes influential law professor William Stuntz who explained that “once the defendant’s sentence has reached the level that the prosecutor prefers… adding more time offers no benefit to the prosecutor. Indeed, prosecutors may actually value ‘extra’ prison time negatively.”
Professor Pfaff writes: “Talk to any prosecutor, and he or she will tell you that the goal is to ‘do justice,’ not to mindlessly impose the toughest sanction available. Although the prosecutor’s definition of ‘justice’ surely differs from that of the public defender sitting at the opposite table, prosecutors are not always going to seek out tougher punishments just because the legislature makes that option available to them (although, of course, they sometimes will).”
Here is the kicker: “In fact, Stuntz, who was one of the most astute observers of the American criminal justice system before his death in 2011, argued that legislators pass tough sentencing laws because they know prosecutors won’t actually impose the maximum punishments.”
That all sounds good, but Professor Pfaff ignores the possibility that individual prosecutors will not necessarily adhere to that wisdom. In fact, earlier he did acknowledge that “reformers have
paid too little attention to far more important factors in the growth of prisons – above all, the actions of prosecutors.”
This year we had the fact reinforced that the Yolo County DA operates differently from other countie.
Back in September, in advance of a budget item on the public defender’s office, Yolo County put out some rather remarkable statistics – statistics that the Vanguard has actually been tracking for some time.
The data presented from the 2014-15 year showed that Yolo County conducted more trials than each of the seven counties historically benchmarked against, in Yolo County salary comparison studies.
But not only that, Yolo County conducted more jury trials than counties with larger populations in absolute terms. Yolo County had 81 felony and 80 misdemeanor trials in 2014-15 compared to 68 from the next largest county, Stanislaus, which has more than twice Yolo County’s population and more than each of Alameda, Fresno, Marin, Monterey, San Mateo, Santa Barbara, Sonoma, Stanislaus and Tulare.
Adjusting for population, Yolo County had the highest jury trial rate in the state, more than counties like Contra Costa, Los Angeles, Orange, Riverside, Sacramento, San Bernardino, San Francisco, and Santa Clara. In fact, Yolo County’s rate was more than twice the next highest county – Kern. Yolo had 75 trials per hundred thousand, Kern had 35.
But numbers are sometimes just abstractions.
In the last month alone we have seen life sentences proposed in burglary and robbery cases which resulted in no injuries. This is not about arguing that people convicted of crimes – who actually committed those crimes – shouldn’t be punished. But the argument that Professor Stuntz puts out simply does not hold in Yolo County.
In our time of covering the court watch, we have seen many cases that were clearly overcharged, where the punishment does not fit the crime.
Consider the recent robbery convictions of Josh Cadenaz-Lopez and his co-defendant Ricky Hernandez. The family of Mr. Cadenaz-Lopez disputes his guilt and we are evaluating the case, but the fact is that Mr. Hernandez is facing 85 years in prison and Mr. Cadenaz-Lopez is facing over 100 years.
There is no doubt that if the men committed these acts – an “if” which in the case of Mr. Cadenaz-Lopez we are disputing at this time – these acts are dangerous, as guns were drawn and people were held at gunpoint.
On the other hand, no one was harmed, there was no permanent damage done, and therefore the punishment does not seem to fit the crime.
There is evidence that Mr. Cadenaz-Lopez, who the family admits has a drug problem, was actually passed out on his couch at 11 pm on the night of the robberies which all took place on a single evening, October 19, 2016.
If they did, it was bad judgment, it was dangerous, and a lengthy sentence is in order, but 100 years for a non-fatal incident is overkill – and yet that is the kind of sentence we see sought over and over again by the Yolo County District Attorney’s Office.
This is not an isolated incident. Part of the problem here, as we saw in a case we covered previously, is that the young defendants never have a chance to make amends and get their lives in order.
A year ago, we asked the question: Can We Be Safe without Overcharging Cases? At that time, we talked to a mother whose son received 35 years to life, where her son and others were convicted of attempted murder after they fired on what turned out to be an uninhabited dwelling in Woodland.
By the time the DA added gang and gun enhancements, her son received the life sentence where he won’t even be eligible for parole until he’s served 85 percent of the time, and then only if a parole board – notoriously stingy, especially with gang cases – approves his release.
She acknowledges that what he did was extremely dangerous, not to mention stupid. She agrees he needed to be punished for what he did.
At the same time, no one was hurt and, therefore, the sentence seems excessive. Why are we arguing that someone who does something very stupid at the age of 20 should be effectively incarcerated for the rest of his life?
These are not isolated incidents. In our time covering Yolo County, we have seen the DA’s office go to the mat attempting to get a man accused of stealing shredded cheese a 25-to-life sentence, we have seen 10- to 20-year sentences for petty theft and stealing Chinese food and bouncing checks.
It actually took acts of the California legislature and the voters to prevent some of these cases – points that run contrary to what Professor Stuntz argues.
Under Proposition 36, no longer can these cases be charged as third strikes, but they can be charged as second strikes with lengthy sentences. Robert Ferguson in 2010 was sentenced to nearly eight years before Prop. 47 was passed.
Under Proposition 47 no longer can petty theft cases be charged as felonies, even with multiple priors.
But that negates the point made by the professor here, as the prosecutor is not the fail-safe against the legislature, but rather the other way around.
In the end however, Yolo County remains an extreme example even within California – a modestly ranked county in crime rate, a small county, that nevertheless ends up at the top in per capita trials and in the top five in per capita incarceration rate.
—David M. Greenwald reporting