Guest Commentary: Overreach – California’s Executive & Judicial Branches’ Deft Strokes Undermine the Electorate’s Power and Erode Freedom

Photo: Mark Boster via Getty Images

By Jesse Perez, justice system impacted youth

“Our system of law requires prisoners like me and many others to surrender our freedom, but our laws do not require us, and we refuse to, surrender our human dignity or the minimal constitutional rights that we retain even after crossing the prison gates.” That was my closing statement to a San Francisco federal jury in 2015. After being forced to languish in solitary confinement for over 10 years, the jury found the corrupt prison guards guilty of fabricating evidence in order to place and keep me in the hopeless conditions of solitary confinement at Pelican Bay in retaliation for exercising my freedom to petition the courts. My trial represents a rare window into but one example of the impunity, unlawful and wastefulness that festers and operates within the annually combined 19.2 billion dollar ecosystem of the executive and judicial branches of government.

Since age 15, I’ve been imprisoned now for over a quarter of a century. I have never known what freedom as an adult in this society is. In that harrowing decade of unconstitutional solitary confinement, however, I learned many lessons about the precious and precarious nature of basic human freedoms, and how the inevitable power dynamics of any society will erode even bedrock constitutional freedoms – if there is no courage to defend them. In this moment of life-engulfing uncertainty, I share those lessons to offer perspective about the need to understand the reality of freedom and its imperatives – which, as we are quickly learning, are increasingly more relevant in our emerging reality.

As a starting point, knowing and understanding one’s basic freedoms is, perhaps, the most important lesson I learned. For the People of California, one such freedom flows directly from the sacrosanct power of the initiative process. As chiseled into our constitutional framework of government, it is the power that gives the People of California the freedom to by-pass politicians and state officials to directly create and enact laws that the People, through the evolving standards of decency that mark the progress of a maturing society or any other need, deem necessary for the public good. That freedom is firmly enshrined in Article II sections 1 and 8 of our state constitution with the follow words:

“All political power is inherent in the people. Government is instituted for their protection, security, and benefit, and they have the right to alter or reform it when the public good may require…The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them.”

These are brief, but incredibly powerful words of fundamental freedom because it secures in place the single most essential element of a true democracy: that which holds that all power of government ultimately resides with the people. One which, as another lesson, should be fiercely defended and protected – even at the appearance of a challenge shimmering in the distance. Lest, that precious fundamental freedom and power gradually erodes into a fleeting afterthought through the normalization and socialization of routine acceptance.

From that perspective, then, and as shown below, one such challenge to the highest and most important freedom and power of the People of California appears to emerge from both the executive and judicial branches’ failure to do what the People mandated be done after enacting The Public Safety and Rehabilitation Act of 2016, or otherwise known as Proposition 57. In section 9 of that law, The People of California gave all state officials a clear mandate: “This Act shall be liberally construed to effectuate its purposes.”

In other words, The People mandated that, when it came time to implement the People’s new law, state officials must do so in the way that would give effect to the People’s declared intent and purposes that compelled the People to create and enact the new law. Fairly simple mandate for university and college level-educated state employees to follow – right?

Well, five years after Proposition 57 was enacted, officials’ implementation of the law has still not effectuated its purposes. Worse, both the unusual maneuvers and meandering off-target manner in which it has been implemented suggests it to be intentionally against the People’s clear mandate.

To see how that is, the People first need to understand what exactly was the intent and purposes of the new law. Thankfully, the proposed new law, itself, provided a short, but clear, list of what the intent and purposes for it were, and articulated them as follow:

  • Protect and enhance public safety.
  • Save money by reducing wasteful spending on prisons.
  • Prevent federal courts from indiscriminately releasing prisoners.
  • Stop the revolving door of crime by emphasizing rehabilitation, especially for juveniles.
  • Require a judge, not a prosecutor, to decide whether juveniles should be tried in adult court.

An easy enough list of purposes to give effect to in the process of implementing the People’s new law, right? As shown below, not for the executive and judicial branch.

First, a routine question during implementation of any new law is whether it will operate forward in time (prospectively) or both backward and forward in time (retroactively and prospectively) from the moment it is approved and becomes effective. Oftentimes, the question of temporal operation is answered by the proposed new law itself. But, in absence of any such indication, officials still conduct an analysis of the new law to draw out what the People’s intent was with respect to temporal operation.

The analysis primarily focuses on the language (or words) that the People used in the new law, and other “intrinsic aids” or surrounding evidence (such as history, circumstances and ballot materials provided to the voters). If the analysis results in unclear intent, officials presume the new law will operate only prospectively because section 3 of our Penal Code states: “No part of it is retroactive, unless expressly so declared.” This method of answering the question of temporal operation at the implementation stage is firmly established.

What is interesting here – and this begins peeling away the layers which brings both the judicial and executive branches’ actions into considerable question – is that Proposition 57 was a dual-purpose initiative. Meaning, the initiative proposed an amendment (or change) to our constitution and one to our Welfare & Institutions Code. And, when it came time to carry out the obligations required by the People’s changes to the constitution (which created an eligibility, not a certainty, for early parole of older non-violent offenders), the executive branch implemented the new law retroactively, but when it came time to carry out obligations required by the People’s changes to the Welfare & Institutions Code (which prevented prosecution and punishment of juvenile offenders as adults absent an in-depth consideration of specific criteria) the executive implemented the new law prospectively only. This decision is, at best, odd and, at worst, an intentional disregard of the People’s clear mandate. Here’s why.

As a cabinet-level agency of the executive branch of government, the California Department of Corrections and Rehabilitations (“CDCR”) immediately set out to create, as mandated by Proposition 57, new regulations that provided non-violent offenders eligibility for early parole hearings before the Board of Parole Hearings and additional credits to achieve faster release. The new regulations made eligibility to such hearings available to offenders sentenced both before and after the enactment of Proposition 57. Meaning, early on, the executive branch had made a determination that applying the People’s new law retroactively and making nonviolent offenders eligible for early parole would effectuate the stated purpose of saving money by reducing the wasteful spending resulting from high levels of offender population (annual housing cost of an offender is $106,131) and protect the public safety by filtering eligible offenders through scrutinized reviews performed by Board Commissioner’s at such hearings. Totally consistent with the People’s mandate.

In direct contrast, however, the decision to not apply Proposition 57’s juvenile justice provisions retrospectively fails to respect and follow the People’s abundantly clear expressed mandate. As noted above, the purposes of Proposition 57 juvenile justice provisions now require judges, not prosecutors, to decide whether to charge a child as an adult (after an in-depth assessment based on rigorous transfer criteria) and emphasized rehabilitation for juveniles. This procedure and criteria did not materialize out of thin air.

Indeed, the new criteria for transferring minors from juvenile to adult court undeniably incorporated exact language from the US Supreme Court’s recent rulings declaring that the severe sentences pronounced against children (which were otherwise designed for entrenched incorrigible adults) represented cruel and unusual punishment in violation of the Eighth Amendment. As declared by the US Supreme Court, the unequivocal scientific evidence established kids are neurologically underdeveloped which makes them haplessly susceptible to impulsivity and impressionability. The High Court also announced the need to take into account, and give great weight to any relevant factor, including, but not limited to, the minor’s age, maturity, intellectual capacity, and physical, mental, and emotional health at the time of the alleged offense, the minor’s impetuosity or failure to appreciate risks and consequences of criminal behavior, the effect of familial, adult, or peer pressure on the minor’s actions, and the effect of the minor’s family dynamics and traumatic experiences, if any. All of which was incorporated into the new transfer criteria.

Thus, based on the overwhelming 65 percentage point approval Proposition 57 received, it is fair to say its enactment represented the hopeful, individual accountability and community restorative justice values and principles of the People of California on the question of how it would treat proven underdeveloped children who make (often painful and devastating) mistakes. It was, admittingly, a difficult decision to make. But, the decision was for the People to make, and, indeed, it did. The People’s enactment was a decisive and firm declaration stating that the People would recognize the exact diminished culpability and higher prospect for reforming traits of children that compelled the Supreme Court to declare the constitutional difference of juveniles as compared to adults.

The new transfer criteria created a mechanism that balanced the People’s public safety needs with the developmental vulnerabilities of children that made the adult prosecution and punishment of them cruel and unusual. The People chose to emphasize demonstrated rehabilitation, as opposed to punishment, striking thereby a form of restorative justice. And a clear rejection of vindictiveness that marked a substantial progress in California’s evolving standards of decency as our society matures.

In this light, the executive branch’s failure to implement the People’s law retroactively simply fails to respect and follow the People’s mandate. The inherent vindictiveness also undermines public safety by sending the message: “you don’t matter,” to people previously treated in a manner now declared cruel and unusual on the factual basis of vulnerabilities stemming from neurological under-developments. A tacit message that is received with palpable undertones of hypocrisy because it simply belies claims of restorative justice. Further, for those meeting the new criteria for juvenile treatment, it deprives them of enhanced rehabilitative programs accessible only through the juvenile system. Programs that would not only advance public safety through focused rehabilitative plans attuned to the individual’s specific needs, but restore communities because those individuals would finally feel a sense of acceptance and belonging – a lack characteristic in this class of juvenile offenders who come from broken homes. And perpetuates wasteful spending by ensuring these offenders continue to be treated and held to the same harsh and highly politicized standards in the parole process originally designed for entrenched incorrigible adults. Clearly, not the intent and purpose of the People’s enactment of the new law.

Worse still, the electorate authorized the Legislature to enact amendments by a super majority. In 2018, the Legislature enacted SB 1391 which amended Proposition 57 by stripping prosecutors’ ability to even request transferring any juvenile 15 or younger to adult court. In section 3 of that act the Legislature clearly stated:

“The Legislature finds and declares that this act is consistent with and furthers the intent of Proposition 57, as enacted at the November 8, 2016, statewide general election.”

The legislative history of SB 1391 undeniably establishes that SB 1391 was enacted as an integral act of the Legislature’s juvenile justice reforms compelled by the new Eighth Amendment ruling from the US Supreme Court. As a matter of law, these reforming efforts were federalized by reliance on US Supreme Court constitutional precedent, and thereby not restricted to prospective operation. The retroactivity intent of the Legislature is further evinced by the fact that it exercised its plenary authority in order to extend the new constitutional rule to young adults of up to 25 years of age.

Based on the language incorporated from US Supreme Court ruling on juvenile sentencing, ballot materials the electorate received and subsequent legislative history of its amendment, the CDCR had before it an abundance of evidence to understand the People’s mandate compelled retroactive application to effectuate the declared purposes of the People’s new law. Incredibly, and even more ironic, there are children being punished as adults based on less circumstantial evidence than the CDCR had before it to understand the law clearly called for it to be implemented both retroactively and prospectively. Surely, then, the judicial branch would act its role in government and provide a check and balance on the executive by declaring what the People’s actual intent was in light of all the evidence outlined above – right? Here’s where, yet, another layer is peeled off revealing an apparent reality of the ecosystem within which the executive and judicial branch operate to ensure the carceral population that feeds its bulging annual budgets remain.

The judicial branch operates, where necessary, on state supreme court judge-made rules to assess and answer various questions of law and fact. These rules are binding on inferior courts and – to promote uniformity and the efficient economy in the administration of justice – the rules are typically rigid. Since 1965, the state supreme court rule on retroactivity, known as the Estrada rule, was applied to prevent retroactive application of a new statute mitigating (lessening) the penalty for a specific offense to cases already reaching the stage of finality (meaning, no longer in active appeal.) What is incredible here is what the state supreme court did the first time the retroactivity of Proposition 57 juvenile justice provisions question was before it.

Specifically, and despite the glaring fact that Proposition 57 is not a law that mitigates the penalty for a specific offense (it is more a law establishing a new procedure for transferring minors to adult court compelled by a new substantive Eighth Amendment constitutional ruling) the state supreme court rationalized as follow:

“[t]he possibility of being treated as a juvenile in juvenile court—where rehabilitation is the goal—rather than being tried and sentenced as an adult can result in dramatically different and more lenient treatment.

Therefore, Proposition 57 reduces the possible punishment for a class of persons, namely juveniles. For this reason, Estrada ‘s inference of retroactivity applies. As nothing in Proposition 57’s text or ballot materials rebuts this inference, we conclude this part of Proposition 57 applies to all juveniles charged directly in adult court whose judgment was not final at the time it was enacted.”

Quite a bit to unpack here. First, by applying the Estrada rule (a rule developed for adult criminal penalties) the supreme court fails to recognize the difference of children as compared to entrenched incorrigible adults. Second, for the first time since 1965, the Estrada rule now no longer applied to only new statutes mitigating the penalty of a specific offense. The supreme court now, presupposing a guilty finding in any case, applied Estrada to a juvenile justice law whose very enactment was, at core, a resounding declaration by the People made upon recognizing the cruel and unusual way it had previously treated underdeveloped children and the restorative justice it now sought to strike.

Further, the supreme court completely ignored the incorporated US Supreme Court language in the new transfer criteria that solidified the People’s intent in recognizing the constitutional difference of children as compared to adults. And applied a state rule of retroactivity in a manner it had never before done to a federalized law not susceptible to its Estrada rule in any event.

At minimum, it raises the question: what is going on here? No branch of government has the authority to enact legislation other than the People (through the initiative process) and the Legislature (through statutory enactment.) Only those two bodies can say what is a crime and what will be the punishment for that crime. Why are the executive and judicial branches not following what the People mandated be done to effectuate the Acts expressly declared purposes? Why is the executive applying Proposition 57 retroactively for older qualified adults but not younger qualified adults? Why is the state supreme court not only ignoring compelling evidence requiring retroactive application of the People’s new law’s juvenile provisions and, for the first time in nearly 60 years since being created, did it apply the Estrada rule to a new law that does not mitigate the penalty to a specific offense?

At this point, there is no certainty on what the answers to any of those questions are. But, it is worth noting that, in the 2022-2023 fiscal year annual budget: the CDCR received $14 billion and the judicial branch received $5.2 billion. That is a combined $19.2 billion, with a “b.” The population of the CDCR is currently hovering at around 99,000. And, due to increased medical needs, it costs much more money to house older adults as opposed to young healthy youth offenders.

California began prosecuting and punishing 14- and 15-year-olds as adults in 1995 and stopped in 2019 with the enactment of SB 1391. It is not known how many 14- and 15-year-olds convicted as adults continue to be punished as adults, or, in other words, continue to be treated in the same manner declared to be cruel and unusual by the US Supreme Court and recognized by the People and Legislature of California – but, ignored by the executive and judicial branch.

The San Francisco Chronicle published an article reporting that: “from 2003 to 2018, more than 11,500 youths ages 14 to 17 were moved into adult courts across California, according to a Chronicle review undertaken as part of “Vanishing Violence,” a yearlong investigation into falling youth crime.” That number only reflects the years 2003-2018. But, even if that number is calculated into a reduction of the current prison population of 99,000, it is readily obvious that the budget for the CDCR would necessarily have to take a significant blow in reduction to the tune of billions of dollars: precisely what the expressed intent and purpose of the Peoples Proposition 57 mandates. There are 1,019 cities in California, if even 4 billion dollars is stripped from the CDCR’s monstrous annual budget, every city in California can get an additional 5 million dollars for its local residents and their needs.

The CDCR has festered into an ecosystem that needlessly siphons an unimaginable amount of financial resources that represent the worst of the public coffers wastefulness. Just as an example, the public should take a look at the Inspector General’s report on independent prison oversight dated February 2021. In it, Inspector General, Roy W. Wesley, informs both the Governor and Legislature that the 10 million dollars that it granted the CDCR to develop a system of independent review of staff misconduct had yielded no independence of review 2 years after granting the 10 million. In other words, the 10 million dollars were wasted on nothing.

Further, the Sacramento Bee reported that prison guard Arturo Pacheco is scheduled to plead guilty in federal court in connection with the death of a 65-year-old prisoner that he and his partner, Officer Ashley Marie Aurich, were escorting on September 15, 2016. After an FBI investigation revealed that Pacheco had not only used brutal excessive force on the handcuffed prisoner, but, along with other officers including Aurich, fabricated false reports of the incident, was indicted for falsifying records in a federal investigation. During that federal investigation, text messages from Officer Pacheco revealed he messaged: “It’s all about how u write ur report,” and “Plus ur partners have ur back,” to other officers. That is precisely the essence of the corrupt power dynamic that has festered within the executive branch’s biggest public funds siphoning parasitic beast. In my own federal jury trial, after being found guilty, the prison guards not only returned to their jobs at Pelican Bay – but were actually promoted to higher paying positions.

That is exactly what the People of California are getting with the mis-implementation of Proposition 57 purely and unnecessary wasteful spending by the CDCR and its abetting judicial branch accomplices in what very much constitutes an overreach of their powers.

This is not about public safety, more than it is about job security for those who benefit from the vast and monstrous ecosystem that has festered within the executive and judicial branches of government. Beyond the continued unconstitutional treatment of thousands of juveniles, the more insidious effect is what the executive and its judicial branch accomplices are perpetrating upon the People of California: the gradual erosion of the People’s freedom and power to create laws and exert its political power.

All of the state officials in both the executive and judicial branch took an oath to uphold and protect our constitution. What they have done with the People’s law sets in place a worrisome standard that certainly does not help to uphold the People’s freedom and power in the state of California.

Human history –another topic I learned during that torturous decade of solitary confinement – is replete with examples of what will happen to the People’s freedoms and power if their existence and their securement is not defended and preserved. Here, two quotes that come to mind are:

“…oftentimes, to win us to our harm, the instruments of darkness tell us truths, win us with honest trifles, to betray us in deepest consequence.” – Macbeth Act I, Scene 3, Lines 120-126.

“Freedom is the sure possession of those alone who have the courage to defend it.” Pericles 495-439 BC

Jesse Perez, justice system impacted youth, is incarcerated at Pelican Bay.

About The Author

Disclaimer: the views expressed by guest writers are strictly those of the author and may not reflect the views of the Vanguard, its editor, or its editorial board.

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