Legislature Passed Bill That Prevents DA’s Offices from Demanding Waiving Future Rights

Yolo County District Attorney Jeff Reisig

The San Diego District Attorney’s office last spring began inserting language into plea agreements demanding that defendants, when pleading guilty, to give up “all future potential benefits of any legislative actions, judicial decisions or other changes in the law that may occur after the date of this plea… .”

It specifically stated that the waiver of rights would apply even if future changes occurred to laws that were designed to be retroactive – for instance, under SB 1437, people convicted of felony murder are entitled to petition the court for potential re-sentencing.  That would be precluded under these sorts of plea agreements.

The language covered any potential but unknown future changes by legislation or even court decisions that would change the law in benefit to the defendant.

That prompted Assemblymember Jones-Sawyer (D – South Los Angeles) to introduce AB 1618, which preserves the integrity of agreed-upon plea bargains.

“As Chair of the Assembly Public Safety Committee I am committed to ensuring equal access to the benefits of legislation and propositions that update our criminal justice system,” said Assemblymember Jones-Sawyer.  “The voters, the Governor, and the Legislature have shown time and time again that there is a desire to ensure that our justice system reflects our values of fairness and justice.”

Plea bargains are entered into by defendants and prosecutors to provide an expeditious resolution to a case.  In exchange for pleading guilty or providing helpful information to law enforcement, plea agreements are offered by prosecutors to avoid the time and expense of a full trial.

These agreements include agreed-upon punishments, accepted by both the prosecutor and the defendant.  These plea agreements have historically been recognized by courts to be subject to change if the state Legislature, or the voters, amend state law.

The bill says that any such provision to waive rights is “void as against public policy.” And the bill also echoes language in a 2013 Supreme Court decision that said parties to a plea bargains are not insulated from future changes in the law.

According to the San Diego Union-Tribune, the DA’s Office in San Diego only included the waiver in three cases.

One defendant (who was going to be deported after serving his sentence) accepted the waiver, but two others rejected it. At the time, the DA’s office claimed it would only be offered in some serious felony cases, such as homicides and sexual assaults.

The waiver has not been offered in any other cases since July, according to DA spokesman Steve Walker.

Assemblymember Jones-Sawyer told the San Diego paper that his concern was that the waiver would effectively usurp the will of the voters, legislators and the governor.

He said the bill was needed because “to have pockets of the state where future laws would have no impact because of the decision of local prosecutors is neither fair nor just.”

“We applaud Assemblymember Jones-Sawyer for sponsoring AB 1618 to make it clear that prosecutors cannot enforce plea bargains that thwart the will of California voters and their elected representatives,” said Margo George.  “Recent changes in our laws reflect advances in science about human brain development and evidence based research about the societal effects of mass incarceration.”

“In 2013, the California Supreme Court settled the issue of pre-emptive agreements in plea bargains by stating clearly that parties entering a plea agreement are not insulated from any future legislation,” said Assemblymember Jones-Sawyer.  “I will work closely with my colleagues to clarify the effect of legislation on plea agreement entered into by defendants and prosecutors alike.”

The bill was approved 73-2 by the Assembly on Thursday, with four members not voting. It passed the Senate by 36-2 with two not voting on Sept. 4.  It now awaits the governor’s signature, and the governor has not signaled opposition to it.

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