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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