Sunday Commentary: AB 1542 Is Both Too Broad and Too Narrow

By David M. Greenwald

Woodland, CA – When Yolo DA Jeff Reisig and Assemblymember Kevin McCarty created AB 1542, reformers rightly saw it as tantamount to prison by another means.  The idea of using a secure facility and mandatory treatment as an alternative to incarceration struck many as the wrong approach.

But a case we watched in Yolo County this past week involving a series of robberies to feed a fentanyl habit illustrate that, at the same time, there is another problem with the legislation.  It incorporates the idea that alternatives to prison should only be available for the so-called non-non-non cases—non-violent, non-sexual, non-serious.

But many reformers have pointed out that we actually will not reduce mass incarceration unless we figure out better ways to handle most so-called violent offenses.  What we saw in court on Monday is a perfect illustration.  The defendant in that case clearly was not trying to harm anyone (he was using, in five of the six robberies, an airsoft gun) and would not have been committing these crimes without the drug addiction, but ultimately would not have been eligible for treatment under a potential future AB 1542.

The case was in many ways routine, although there was an interesting argument  by Deputy Public Defender Dan Hutchinson on the second count.  But, other than that, the holding order was clearly in order for six counts of robbery.

But beneath that layer is an interesting case.  The defendant, Ervin Vargas, actually admitted the offense to the police.

“Mr. Vargas told me that he really only remembered the first one and the last one,” the detective said.  “He said he was addicted to fentanyl.”

The weapon he used was an airsoft gun and the one time that he used a knife was when he was unable to locate the airsoft gun.

He also said, “He never wanted to hurt anyone was sorry for what he had done.”

Detective Jameson advised him that he should write a letter to the victims to apologize and he ended up doing so.

While we have focused on some of the problems of AB 1542—especially the coercive nature of it, the fact that it would be mandatory drug treatment, the idea that it would be a locked facility—this case brings up another shortcoming.

As DA Jeff Reisig sold it in his press release previously: “If it becomes law, AB 1542 would allow Yolo County to develop a secured treatment facility for individuals who are involved in the criminal justice system and who live with substance use disorders. Those eligible for the treatment program would include people who have committed drug motivated felonies that, absent this program, would result in them being sentenced to jail or prison.”

This case would seem to fit the bill—right?

After all, Vargas is an addict.  He committed the robberies to feed his drug habit.  He explained that he had a job, but doesn’t make enough to feed his addiction.

And he even went so far as to apologize to the victims for his crime.  You would think this is the exact person who needs to be helped.

But the law is meant only to address relatively low level offenses.  Not only does his crime predate the passage of AB 1542, but, under 1542, “Those who commit misdemeanors, simple drug possession, sex offenses, and strike offenses would not be eligible.”

That’s a problem because in most ways Vargas is a perfect case study on the need to get someone treatment help, rather than prison time.

Not only is this true on a case-by-case basis, but also on a systemic level.  Much of the focus off the first layer of criminal justice reform has looked at reducing incarceration for low level offenses.  We have looked to things like diversion and even declination to reduce the number of people that go to prison for non-dangerous, non-serious offenses.

But if the goal is prison reduction, then we have to go further.

As the Marshall Project noted last year, “While relief for ‘non-violent’ offenders remains a staple of talking points and campaign platforms, several candidates are also beginning to wrestle publicly with the question of what to do about violent offenders, amid a party-wide progressive swing on criminal justice policy.”

They add, “These conversations have yet to produce comprehensive proposals aimed specifically at violent offenders, who make up roughly half the nation’s prison population. But advocates say reversing mass incarceration is impossible without including them, and the idea should not scare politicians or the public. They point to growing research that indicates most people ‘age out’ of violent crime after their 20s and 30s, and to the fact that many states classify as violent some drug crimes and other offenses most Americans do not consider violent.”

Again, I have concerns about creating a system for a locked facility, but I do agree with the underlying premise of AB 1542—moving people who are committing crimes to feed drug habits or due to drug habits out of prisons and into treatment.  The question is how we do that.

But at the same time, I am increasingly concerned that we are excluding people that should be good candidates for this program by drawing artificial lines on so-called violent offenses.  The Vargas case just happens to be a perfect case study in that and offers us a chance to re-think this.

—David M. Greenwald reporting


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About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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28 Comments

  1. Chris Griffith

    So in one Davis Vanguard story the liberals want to decriminalize hallucinogenic drugs such as fentanyl and LSD and in the next story they feel sorry for the drug addict because he commits four armed robberies at an ATM machine at Yolo Federal credit Union and he is also up for a hit run accident and somehow liberals believe he should get off scot-free totally amazing. Because he’s a drug addict and he’s not responsible for his actions 😋

     

    Am I humble opinion I think society has lost its moral compass and I’m not just talking about the people who commit the crimes I’m also talking about the people who make the laws.

     

     

    1. Richard_McCann

      Let’s back up a step and ask the more fundamental questions: Why is he an addict? Why did he feel compelled to steal? Each of these is motivated by situation and factors that are outside of his control, and almost certainly within the control of society at large. Punishment as deterrence largely does not work for lower levels crimes (and just puts new criminals into the “criminal training program” at the prisons). (It works for white collar crimes but we refuse to prosecute and sentence these criminals in sufficient amounts to create real deterrence.)

      1. Ron Oertel

        Why is he an addict? Why did he feel compelled to steal? Each of these is motivated by situation and factors that are outside of his control, and almost certainly within the control of society at large.

        Is that right?  Are you referring to the time before someone became an addict or thief, or afterward?

        I didn’t realize that personal addiction and choice to engage in violent robbery was something that “someone else” can control, or was even their responsibility in the first place.

        [edited]

        1. Ron Oertel

          Either way, it’s incorrect.

          No situation forces anyone to become an addict, or engage in violent actions.

          And as such, no one else can “fix” a situation which isn’t causing it. Whatever situation and factors he’s referring to in the first place are not a “cause”.

          1. David Greenwald

            Having dealt with the fall out for the past year and a half, I think you have never had to deal with it.

        2. Ron Oertel

          You haven’t explained that, but I wouldn’t make any assumptions in regard to the personal experiences of others, or what they have witnessed.  Nor would I make any assumptions regarding “cause”.

          Nor have you even put forth a “cause” for whatever you claim to be dealing with.

          In fact, neither has Richard. Nor has he explained how that is “outside of one’s own control”, let alone how that can be controlled by someone else.

          Lots of people from varied backgrounds become addicted to various substances, with varying impacts.

      2. Alan Miller

        Each of these is motivated by situation and factors that are outside of his control, and almost certainly within the control of society at large.

        I know many addicts, some of whom engaged in criminal activity.  I can’t think of a single person whose ‘case’ was within ‘the control of society at large’.  In fact, some of these addicts came from families whose siblings were not also addicts, raised under the same roof.  If the family cannot stop a certain person from becoming an addict, how can ‘society at large’ ?

        Punishment as deterrence largely does not work for lower levels crimes.

        Tell that to David Crosby, who attributes getting thrown in the slammer as waking him up to what he was doing to himself with drugs.  I believe also Johnny Cash had them overtake him down in Juarez, Mexico.

  2. Eric Gelber

    This article reminds me of the quote from “Annie Hall”:

    ALVY SINGER: There’s an old joke – um… two elderly women are at a Catskill mountain resort, and one of ’em says, “Boy, the food at this place is really terrible.” The other one says, “Yeah, I know; and such small portions.” 

    AB 1542 is a flawed model. Yes, we should be offering treatment rather than incarceration to more offenders. But not in the context of AB 1542.

    1. Bill Marshall

      Question is, Eric… is it a baby step forward, or two steps back?  ‘Stasis’ is a known problem…

      If it is two steps back, that compounds the problem… if it is a step forward, at least there is a modicum of progress… which can be refined… perhaps in a big step forward…

      In the particular case, given the supporters of the proposal, and my view of them, the uncertainty of progress @ any level, and risks of ‘unintended consequences’, my first inclination is to stick with the stasis, which is not good.

      I have no expertise in this realm… for me to render an opinion would be like having a psychology major advising me (or dictating to me) as to the grade and pipe size for a sanitary sewer main…

      1. Eric Gelber

        It’s tantamount to providing medical services to individuals without current access, but offering only anachronistic, substandard care rather than available services that meet current standards of care. Why would Yolo County want to establish the pilot program for such a model?

        1. Bill Marshall

          OK… the “do nothing option”… ‘let it be’… got it… I can live with that… ? is, can others?

          Stasis is a safe place to land, for politicos…

        2. Eric Gelber

          the “do nothing option”

          No. It’s the “if you’re going to do something, do it right” option. A broader, more inclusive group of stakeholders should have been involved in the drafting of AB 1542.

        3. Bill Marshall

          Let’s see if, who, and when,

          It’s the “if you’re going to do something, do it right” option.

          surfaces… for now, it is, factually, ‘do nothing’, if you oppose the proposal… unless, of course, you are fully prepared to present a ‘do it right’ proposal, now.  I see no other proposal on the horizon…

          You remind me of someone who says, “I’m thinking of a number between 1 and 100… you are responsible to guess, and I may let you know if you are correct… otherwise, I’ll criticize…”

          ‘Result’ = stasis = do nothing [QED]

        4. Eric Gelber

          It’s not on me to design a pilot program merely because I, along with the bill’s formal opposition, have pointed out problems with the proposed program. That’s nonsense.

          There are plenty of qualified professionals and other stakeholders who could have and should have been involved in the crafting of the bill. It’s not too late to involve them in amending it. But I don’t see the author or source of the bill being inclined to do that.

        5. Richard_McCann

          Bill

          No, there are concrete counter proposals. It’s the AB 1542 supporters who refuse to consider these alternatives, which makes these alternatives look like the “do nothing” option. Place the blame where its appropriate.

  3. Edgar Wai

    Where did the robber live compared to where he robbed?

    The default policy to non-incarceration is “keeping those people outside a community”.

    In the context of drug addiction, it would be like this “if you are addicted to drugs, we don’t put you in jail, but you can’t live in our drug-free community. You may live in these other communities that are not drug free. If you want to return to this drug-free community, you need to get a clearance certificate.”

    1. Chris Griffith

      Where did the robber live compared to where he robbed?

      He lives in woodland and he robbed in woodland.

      If you want to return to this drug-free community, you need to get a clearance certificate.”

      Hell I’d be happy if they just gave him lobotomy before they released him back into the general population.

      1. Bill Marshall

        Hell I’d be happy if they just gave him lobotomy before they released him back into the general population.

        Hell, why not just shoot him dead?  Same same, except long-term care would be less expensive with the shooting option… not sure it’s legal in any country today (USSR banned it nearly 60 years ago [such goodie-two-shoes!]), and for most, not even in 40 years…

        Your proposal is ‘telling’…

  4. Don Shor

    I could see very good logic for creating a diversion program for drug treatment for violent offenders with drug habits. It would need to be in prison. It seems problematic to me to have violent offenders commingled with non-violent offenders in a treatment program.

    This individual went from an airsoft gun (which can cause serious injury at close range) to a knife, which pretty much anyone recognizes as an implement of violence. That is an escalation, regardless of his reasons.

    But if the goal is prison reduction, then we have to go further.”

    The goal of our criminal justice system is a safer community. Diverting violent criminals from prison isn’t likely to yield a safer community.

    1. David Greenwald

      “The goal of our criminal justice system is a safer community. Diverting violent criminals from prison isn’t likely to yield a safer community.”

      A lot of evidence suggests otherwise. A lot of research has found that restorative processes are far more effective at making the community safer. Besides – violent crime is broad. For instance, robbery is defined as violent. But in the case outlined here – was the guy violent? Couldn’t we better resolve it by getting the guy treatment? There are no doubt crimes that need incarceration, but they may be much narrower than we have practiced.

      1. Bill Marshall

        Don was talking GOALS, not METHODS (as I read it)…is your goal to redeem/help the criminal, David?

        Perhaps we should have sent in 4 MH workers to save the VTA dude from committing suicide after killing 9, wounding others… maybe only 3 of them would have died before getting him to put down the weapon, and getting him treatment… certainly NOT incarceration!

        You have espoused the “better that 10+ folk get off, to save one innocent”… do you believe “10+ folk must suffer/die to save one disturbed individual”?  Same coin, two sides…

        You differ from Don’s assertion… what is YOUR definition of the “goal of the criminal justice system”?

         

        1. David Greenwald

          What I find interesting in your response is the notion that public safety is somehow achieved through incarceration – when in fact, the evidence suggests that incarceration makes it harder for people who are incarcerated and then released – 85 percent of those incarcerated will be released – to get jobs, to deal with substance abuse and mental health disorders which leads to recidivism and more crime down the line. There are actually better ways to do things. So when you mention – goals – I believe the evidence shows that the goal of public safety is not well served by the current system.

    2. Richard_McCann

      Diverting violent criminals from prison isn’t likely to yield a safer community.

      If it’s a first time offense, diversion can yield a safer community if it leads to no recidivism. Higher incarceration rates don’t lead to a safer community either. For example, three strikes hasn’t led to decreased crime rates when you compare the rate of change for states with and without such a law.

  5. Chris Griffith

    Your proposal is ‘telling’…

    Yep, the punishment for a crime must be far greater than the crime that was committed. For instance if you sell drugs you we’ll get to death penalty. No ifs ands or buts. If this type of punishment was implemented do think anybody would want to go out and deal drugs? Our drug epidemic problem would be over. It would also probably have a large impact on the homeless problem.

    If you’re rob somebody with a gun you get your hand chopped off if you rob them twice you get the other hand chopped off. If this was implemented robberies would drop off dramatically.

    I love to call it tough love 😳

    The only thing liberals are doing in the state of California to criminals is enabling them plain and simple.

    Just one person’s humble opinion

     

  6. Chris Griffith

    I have one more thought. 🤔

    I don’t think we should determine sentences for crimes by years months or even days I just think that’s flat wrong.

    I think it should be determined by the ton. For instance if you get thrown in the county jail for driving while suspended you can’t get out untill you break up one ton of boulders no smaller in size than 2 ft in circumference. Get your ass thrown in jail for say elder abuse or beating you old lady you get 10 tons of rocks and you can’t get out until they’re all broken up to at least three quarters of an inch or less it doesn’t really matter if it takes you 5 days or 10 years you just get out when they’re all broke up and if you come back for the same offense the tonnage doubles.

     

     

     

     

  7. Bill Marshall

    and if you come back for the same offense the tonnage doubles.

    Too damn liberal… should be 10-100X, right?  That would fit better with your previous posits…

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