By David M. Greenwald
Oakland, CA – An internal and interim memo from Alameda DA Pamela Price sought comments on a new policy that aims to reduce “reliance on sentencing enhancements and allegations as an effort to bring balance back to sentencing and reduce recidivism.”
According to the proposed policy, “Generally, prosecutors shall not file or require defendants plead to sentence enhancements or other sentencing allegations. Exceptions may be allowed on a case-by-case basis in cases involving the most vulnerable victims and in specified extraordinary circumstances.”
According to Price’s office, the “guidelines are being circulated internally for feedback through the end of March.”
They note, “The guidelines may change based on the feedback we receive.”
The office explained, “Our administration issued guidelines for our office for the fair and balanced administration of justice and to create structural changes that will improve our operations. In the previous administration, there were only verbal directives; it was left to the individual deputies to make charging and sentencing decisions based on personal preferences.”
They added, “In the first ever all-employee survey, the deputies told us issuing guidelines should be a priority, and as a responsible manager, District Attorney Price has worked with our leadership team to develop guidelines consistent with the mandate given to her by the voters.”
“This directive reduces reliance on sentencing enhancements and allegations as an effort to bring balance back to sentencing and reduce recidivism,” they continued. “This is not a top-down directive: our office is listening and working collectively to serve the people of Alameda County.”
According to the office, the guidelines were meant for internal discussion during circulation and were subsequently leaked to the press by staff ostensibly opposed to the new policy.
According to the directive, the policy change “is informed by the views and opinions of the community, victims, criminal law experts, and court opinion.”
It clarifies, “This directive does not affect the decision to charge crimes where a prior conviction is an element of the offense,” for example felon in possession of a firearm or driving under the influence or domestic violence with priors.
The policy would allow for exceptions “(w)here extraordinary circumstances suggest that an exception is appropriate, specific supervisory approval must be obtained.”
For special circumstance allegations, “Prosecutors are prohibited from filing special circumstance allegations absent extraordinary circumstance and supervisory approval.”
However the prosecutor is not required to dismiss charges that have already been found to be “true.”
On prior strike priors, under PC section 667, “prosecutors shall plead strike priors where there is sufficient evidence to prove the prior beyond a reasonable doubt.” However, “Absent supervisory approval, prosecutors shall move to dismiss or strike all alleged strike priors pursuant to (PC § 1385) in the interest of justice, arguing factors for judicial consideration…”
But they “shall not move to reinstate strike priors that were previously dismissed by a court and shall not use those strike priors in case negotiations.”
The DA’s office is allowing for enhancements “in specified extraordinary circumstances” in “cases involving the most vulnerable victims”—issues such as Child Physical Abuse, Sexual Abuse, Human Trafficking, and other such cases.
On the other hand, some case “enhancements and allegations shall not be pursued in any case absent extraordinary circumstance and supervisory approval”—these include five-year priors, gang enhancements, special circumstances resulting in an LWOP, violations of bail or OR, and firearm allegations pursuant to PC 12022,53.
“Sentencing enhancements are a legacy of California’s ‘tough on crime’ era,” the DA’s office explained in a background provided to the Vanguard. “While initial incarceration prevents crime through incapacitation, studies show that each additional sentence year causes a 4 to 7 percent increase in recidivism that eventually outweighs the incapacitation benefit.”
They explained, “This policy is guided by and refers to the best available research and science examining California’s criminal laws, as well as the intent and direction of the California Legislature. “
California has enacted over 100 sentencing enhancements, many of which are outdated, incoherent, and applied unfairly. There is no compelling evidence that their enforcement improves public safety. In fact, the opposite may be true. State law gives District Attorneys broad authority over when and whether to charge enhancements.
Their background cites The Stanford Computational Policy Lab, which studied San Francisco’s use of sentencing enhancements from 2005 to 2017. They released their report, Sentencing Enhancements and Incarceration: San Francisco, 2005-2017 in October of 2019.
As noted in the study: “During the 1980s and 90s, enhancements became more numerous and severe. Dozens of new enhancement laws were passed in a way that critics alleged was haphazard—in ‘reaction to the “crime of the month.”‘”
California’s massive rates of incarceration “can be tied directly to the extreme sentencing laws passed by voters in the 1990’s, including the 1994 Three Strikes Law.”
In 1980, California had a prison population of 23,264. In 1990, it was 94,122. In 1999, five years after the passage of Three Strikes, California had increased its population to a remarkable 160,000. By 2006, the prison population had ballooned to 174,000 prisoners.
The Stanford study found that “the use of sentencing enhancements in San Francisco accounted for about 1 out of 4 years served in jail and prison. This study found that the use of sentencing enhancements — mostly Prop. 8 priors and Three Strikes enhancements — accounted for half of the time served for enhancements.”
The study concluded that “we could substantially reduce incarceration by ceasing to use enhancements. These enhancements also exacerbate racial disparities in the justice system: 45% of people serving life sentences in CDCR under the Three Strikes law are black. ”
Moreover, “Gang enhancements have been widely criticized as unfairly targeting young men of color.”
Recent analyses by the LA Times suggest that “the CALGANG database is outdated, inaccurate and rife with abuse.”
According to CDCR data from 2019, “more than 90 percent of adults with a gang enhancement in state prison were either black or Latinx.”
According to Fordham Law Professor John Pfaff, “There is strong empirical support for declining to charge these status enhancements. Long sentences imposed by strike laws and gang enhancements provide little additional deterrence, often incapacitate long past what is required by public safety, impose serious and avoidable financial and public health costs in the process, and may even lead to greater rates of reoffending in the long run.”
According to Pfaff, “a growing body of evidence-based studies have suggested that policing deters; long sentences do little. What deters most effectively is the risk of detection and apprehension in the first place. Other studies increasingly indicate that spending more time in prison can cause the risk of later reoffending; as the harms and traumas experienced in prison grow, the ability to reintegrate after release falls.”
That prison “may increase, not decrease, the risk of reoffending while imposing serious costs on communities starkly illuminates the need to invest in alternatives.”