Does the current bail system penalize the poor?

By Michele Hanisee

The Obama Administration has again challenged the bail system, asserting in an amicus brief in a Georgia case that fixed bail schedules, which don’t account for the ability to pay, are unconstitutional.

This position was most recently asserted in an amicus brief filing in a case in Georgia.  As we noted in a previous blog, a lawsuit in California is also challenging the bail system, although that lawsuit was denied class action status and an injunction earlier this year by a federal judge who issued a scathing decision.

Setting bail for those facing criminal charges is undoubtedly constitutional, as the 8th Amendment only prohibits “excessive bail.”  In addition, the United States Supreme Court approved holding a person pre-trial without bail in a 1987 case, United States v Salerno.  The Obama Administration now seeks to challenge the bail requirement for indigent defendants as a violation of the 14th Amendment.  However, as law professor Stephanos Bibas commented to the Los Angeles Times, the Supreme Court has not previously ruled that the equal protection clause forbids policies which may discriminate against the poor.

In California, Penal Code Section 1269c requires judges in each county to meet yearly and set a uniform bail schedule for that county.  This schedule is used by police to set bail for persons booked into custody following arrest.  If the arrestee does not bail out, they must appear for arraignment before a judge within 48 hours.  Once the person appears in court, the judge can consider the crime charged, criminal history of the arrestee and any prior failures to appear in setting bail.  The determination of the judge is not final.  The arrestee may request an additional hearing at which the arrestee is permitted to provide additional facts to challenge the bail amount.

The need for bail as a means to ensure appearances in court is readily apparent.  Some could argue that the current bail system does not penalize the poor, it targets the rich.  Judges routinely change bail amounts to reflect the wealth of a defendant.  For example, a very wealthy person charged with a violent crime will see bail often increased to reflect the fact that the standard bail amount is a less meaningful incentive to appear in court than it would be to the average person charged with a crime.

If there is any doubt that not requiring bail leads to failures to appear in court, consider the impact of Proposition 47.  In California, those arrested for misdemeanor offenses are rarely held pre-trial, instead usually being cited and released to appear in court at a later date.

When Prop. 47 reduced a significant number of felony offenses to misdemeanors, one of the early impacts was that failures to appear in court soared in 40 of the 58 counties surveyed earlier this year.  In Monterey County, there was a 33% increase in failures to appear for misdemeanor offense following the passage of Prop 47.  As a newspaper editorial noted, these criminals are not only failing to make their court dates; they aren’t getting drug treatment either.

If the Obama’s Administration position calling for the abolition of fixed bail schedules were to be adopted, the consequences in California would be significant. No longer could arrestees on felony offenses be booked into jail without appearing before a judge or commissioner.  Instead, those arrestees would have to appear before a judge or commissioner prior to being booked in jail, with a Deputy District Attorney and defense attorney required to be present at that hearing. Since arrests occur day and night 365 days a year, that means courtrooms opens 24 hours a day, 365 days a year, to conduct bail hearings, staffed by a judicial officer, court staff, deputy sheriff’s,  a prosecutor and defense attorney.  Since arrest reports would not have been written, the arresting officer would have to be present to give a probable cause declaration.

The case study cited by DOJ as an example of abusive practices was based upon an the arrest of an individual for a misdemeanor offense in Calhoun, Georgia — a town so small that court was only in session once a week.  Never mind that Calhoun’s practice of holding individuals in custody for over 72 hours most likely violated other constitutional rights.  The focus was the $160 bond required for release before the arrestee’s first appearance in court.  By contrast, the California Penal Code requires that all arrested persons be brought before the court within 48 hours (weekends excepted).

The Obama Administration’s argument that all pre-appearance fixed bail schedules are unconstitutional on their face is unfounded, and if adopted would impose great financial costs upon California counties, not to mention the public safety implications.  As is typical with “reformers” the Justice Department’s brief offers criticism, but little in the way of workable solutions.  For example, the current bail in Los Angeles for the crime of murder is two million dollars.  If an indigent homeless person commits murder, is the Department of Justice suggesting that the bail should be reduced to, say, one hundred dollars or some similarly insignificant amount?

This assertion that it is unfair to detain a person charged with a crime pre-trial based “solely” on their inability to pay bail begs the question — who would be in custody if they could pay the bond?  Every single person charged with a crime in California who is in custody pending arraignment or trial (other than those charged with capital murder which carries no bail) is there because the bail was set at an amount they were unable to pay.

The use of fixed bail schedules in California post-arrest, and before arraignment, is both respectful of public safety and an arrestee’s constitutional right.  We await the decision of the 11th Circuit Court of Appeals and perhaps the United States Supreme Court for the final word.

Michele Hanisee is President of the Association of Los Angeles Deputy District Attorneys. The Association of Deputy District Attorneys (ADDA) is the collective bargaining agent and represents nearly 1,000 Deputy District Attorneys who work for the County of Los Angeles. 

Grim Sleeper killer is a perfect example of why we need to pass Prop. 66

By Eric Siddall 

Each and every one of the 746 people on California’s death row are prime examples of the importance of preserving the death penalty for the state’s most brutal killers.

Serial killer Lonnie David Franklin, Jr., is as deserving as any.

Superior Court Judge Kathleen Kennedy sentenced Franklin, better known as the “Grim Sleeper” killer, to death last week after a jury convicted him of murdering nine women and a teenage girl between 1985 and 2007. After shooting or strangling them, he often discarded their naked bodies, like trash, next to roads or in dumpsters. Detectives believe he could be responsible for killing 25 or more women.

While Kennedy rightfully sentenced Franklin to death, his true fate will be decided at the ballot box this November.

Two competing ballot initiatives have the potential to affect every person on death row, as well as criminals who commit the most unspeakable crimes in the future.

Proposition 62 would scrap the death penalty, allowing Franklin and other death row inmates who have killed cops and raped and murdered children to live out their lives behind bars. Proposition 66, by contrast, would preserve the death penalty for the most heinous criminals by enacting critically needed reforms to the system.

All of us have a responsibility to educate the public about the importance of passing Prop. 66 and defeating Prop. 62. When you go out and talk to your friends, relatives and even casual acquaintances, drive home the importance of this vote by making the consequences real. Citing the Grim Sleeper as an example of someone who would reap the benefits of the wrong outcome in November would be a great start.

You can sign up for campaign email updates, and volunteer for and donate to the campaign, by visiting the Californians for Death Penalty Reform and Savings website and clicking on the links on the right side of the home page.

Proposition 57 Unmasked: A Detailed Analysis of the Misleading Initiative

By Michele Hanisee

Proposition 57 is a many headed monster that will wreak havoc on public safety. It allows the early release of inmates serving time in state prison for violent and non-violent offenses through parole grants or accelerated sentence credits. In addition, it changes the juvenile system by disallowing prosecutors to directly charge juveniles who commit murder, rape, or other heinous crimes. Instead, a Judge will decide based on criteria that ensures few, if any, juveniles will be charged as adults.

In order to explain the various provisions, a detailed handout has been prepared which breaks out the adult parole components of Prop. 57. That handout is posted on our website and can be downloaded if you click here.

The initiative, misleadingly titled “The Public Safety and Rehabilitation Act” is so sloppily and poorly drafted; that it is necessary to go step by step through multiple Penal Code sections to understand why, contrary to the false claims by Governor Brown, Prop. 57 will give violent felons, including rapists, child molesters and murderers, early release from state prison. As my colleague Eric Siddall pointed out in a previous column, the Governor’s spokesperson was forced to admit that Prop. 57 will allow the early release of violent inmates.

The fact sheet includes sentencing examples that illustrate the drastic changes to parole eligibility that will occur in the case of serious felonies, strike priors and sex crimes. A reference to multiple voter enacted initiatives that Prop. 57 contradicts and overrides, such as “Three Strikes,” “The Victim’s Bill of Rights” and “Marsy’s law,” is also included.

I urge everyone to review the document, “Facts About Proposition 57.”

Recent news provides additional reasons for defeat of Governor’s early release initiative

By Eric Siddall 

Two events this past week sharpened the focus on why Proposition 57, Governor Brown’s initiative to release early tens of thousands of state inmates, is a dangerous experiment that should be rejected by voters.

The first was news that crime is continuing to rise in Los Angeles County and the City of Los Angeles for a second straight year.  As reported by the Los Angeles Times, this rise in crime “continues last year’s trend across California. Statewide, violent offenses jumped 10% and property offenses 8% compared…”  We have written about this rise in the crime rate since the passage of Proposition 47, including the fact that California’s property crime rate has risen while in the next five biggest states the property crime rate has dropped.  Proposition 47, AB 109, and re-alignment-all early release experiments-have led to flood of convicted felons on our streets.

The second piece of news was the denial of parole to Manson family killer Leslie Van Houten.  We strongly opposed a release  approved by two members of the  Board of Parole, and are glad Governor Brown overturned the parole board and blocked her release. This is not the first time these unelected bureaucrats made the wrong call with the governor reversing. This happened with the murderer of a San Diego Police Officer Archie Buggs.  In another case, a felon convicted of conspiring to kill Los Angeles Police Detective Thomas Williams was granted parole and only after the governor ordered the parole board to reconsider was the parole grant rescinded.

These two pieces of news relate to each other because Proposition 57 will allow the Department of Corrections and Rehabilitation (CDCR) staff to invent new sentence credits to ensure state prisoners are granted early. In addition, these same bureaucrats who want to grant early release for cop killers, will now have constitutional authority to grant early release by allowing inmates to avoid serving time imposed by judges for sentence enhancements. This constitutional mandate will make the governor, the legislature, the courts, and prosecutors powerless to stop or reverse their decisions. Proposition means this: No checks. No balances. CDCR and the parole board will have absolute power when it comes to the early release of murders and rapist.

Proposition 57 will simply pour an accelerant on the crime rate increase in California.  It is an insult to crime victims, an undeserved gift to convicted criminals, dangerous to citizens everywhere-and must be defeated.

State Legislature again moving to tilt playing field in favor of criminals

By Eric Siddall 

The latest assault on the criminal justice system is a little gem called AB 1909.

This piece of legislation would make it a felony punishable by up to three years in prison for any prosecuting attorney to withhold or falsify evidence. Nothing wrong with that, right? Wrong.

Why? Because the bill targets prosecutors but says nothing about defense attorneys. So, by inference, it would be OK for defense attorneys to “intentionally and in bad faith alter, modify, or withhold” evidence.

We fully agree that prosecutors should be held to the highest of standards, and we have no tolerance for those who flaunt the rules. But these standards should apply to all attorneys in the criminal justice system – defense and prosecutors alike.

The current system acknowledges this. Both sides have equal responsibilities to disclose evidence before a trial begins. As a result, the playing field is even. AB 1909, by contrast, tilts the playing field to benefit defense attorneys and the criminals they represent.

AB 1909 would be troublesome enough if it existed in a vacuum. But, unfortunately, it isn’t an outlier or a random piece of legislation.

AB 1909 is part of a pattern of attacks on public safety and crime victims, and it must be considered in the contest of other troubling pro-criminal ballot initiatives, legislation and judicial decisions. Such as Prop. 47, which has flooded the street with violent felons, contributing to a surge in crime throughout the state. And Gov. Brown’s felon-freeing November ballot initiative, which would make felons eligible for parole after serving 50 percent of the sentence for their primary offense – regardless of any enhancements that had been added onto the sentence, and regardless of previous strikes for brutal crimes such as rape and murder. And a judge’s recent decision to give a gentle slap on the wrist to a Stanford student who sexually assaulted an unconscious woman.

Not surprisingly, the liberal-dominated State Assembly passed AB 1909 by a 60-18 vote. The Senate’s Public Safety Committee subsequently approved it by a 6-1 vote, and it is now headed to the Senate Appropriations Committee.

The ADDA will lobby hard against this latest piece of misguided legislation, and will keep our membership informed about our efforts and the status of the bill.

Gov. Brown rightly rejects parole for Manson family murderer

By Michele Hanisee

The ADDA commends Gov. Jerry Brown for denying parole to brutal murderer Leslie Van Houten.

Brown on Friday rejected the state parole board’s recommendation to grant parole to the Manson family member.

Van Houten originally was  sentenced to death for holding down Rosemary LaBianca on Aug. 10, 1969 so fellow Manson-follower Tex Watson could skewer her with a bayonet. Then, she took a knife and stabbed the helpless woman 14 more times in the back. Her sentence was commuted to life in prison only because the California Supreme Court struck down the death penalty.

The parole board turned down Van Houten’s requests to be freed 19 times before a two-member panel in April inexplicably recommended to free her.

Brown, however, correctly ruled that Van Houten posed “an unreasonable danger to society if released from prison,” according to the Los Angeles Times. In his five-page decision, Brown cited the brutality of the crime itself, the mark that the Manson followers’ crimes left on society, their motive to trigger a race war by randomly slaughtering innocent people, and Van Houten’s admission more than two years after the murders that she would have no difficulty killing someone again.

However, Brown’s unequivocal ruling is not the end of the line for Van Houten. She will have future parole hearings, and her lawyer said he will challenge Brown’s decision in court.

The ADDA will keep you updated on the status of Van Houten’s case.

Competing death penalty initiatives could spur confusion Prop. 66 will preserve and reform the death penalty system

By Michele Hanisee

This November, California voters will be presented with two of the most important ballot initiatives in state history.

One – Proposition 66 – would preserve the death penalty for the most heinous criminals by enacting critically needed reforms to the system.

The other – Proposition 62 – would scrap the death penalty, allowing criminals who kill cops or rape and murder children to live out their lives in the relative comfort of prison.

I cannot overstate the importance of supporting Prop. 66, and doing everything we can – no matter how small – to educate others about it. If Prop. 66 fails, and California scraps the death penalty, the kind of brutal criminals who ambushed and slaughtered five police officers in Dallas Thursday night would only face life in prison if they committed those crimes here.

To be sure, the problems with California’s current death penalty system are by no means new, and they have literally transformed a death sentence into life without parole. Since the U.S. Supreme Court reinstated the death penalty in 1976, the state has executed only 13 inmates. A quarter of the 700-plus inmates on California’s death row have been there for more than 25 years. The average death-row inmate has spent 16 years with a death sentence.

One of the primary problems is the endless inmate appeal process of their death sentences. Prop. 66 would fix this problem, and many more.

Among other things, it would require that a defendant who is sentenced to death be appointed a lawyer at the time of sentence, meaning the defendant’s appeal will be heard sooner. It would also allow the California Department of Corrections and Rehabilitation to reduce the cost of housing death-row inmates, and make it easier for the department to enact an execution protocol.

As we said in earlier posts, failure to pass this initiative is not an option; not only would Prop. 62 eliminate the death penalty going forward, but it would apply retroactively to people already sentenced to death.

You can sign up for campaign email updates, and volunteer for and donate to the campaign, by visiting the Californians for Death Penalty Reform and Savings website and clicking on the links on the right side of the home page. 

California’s Legislature blazes new path in deterring dangerous activities

By Michele Hanisee

The California Legislature has come up with a brilliant way to keep our youth from using a dangerous product that kills tens of thousands of Americans every year, and leads to billions in medical costs. Make the product legal to possess and use! Wait, what?

Several months ago the California Legislature passed, and Governor Brown signed, Senate Bill 7 raising the age to be able to purchase tobacco products in California to 21. According to the bill’s author, this legislation was necessary to prevent or severely restrict youth access to these “highly addictive and deadly products that lead to a lifetime of adverse health effects.” That underage age use leads to use as an adult is confirmed by a National Survey on Drug Use and Health, finding 80% of tobacco users start before age 18.

However, what SB 7 also did was eliminate prior law making it a crime for those under 18 to possess, receive or purchase tobacco products. The penalties were hardly draconian-a fine of up to $75 and up to 30 hours of community service could be imposed by a Judge for minors caught possessing or buying tobacco products. In short, a small but meaningful consequence to deter behavior.

In its infinite wisdom, the California Legislature decided the way to deter smoking was only to make it a crime to sell or furnish tobacco products to those under 21. However, thanks to the Legislature, once those under 21 get tobacco products, they can possess and smoke them with abandon. Or, to borrow the catchphrase from the child’s game hide and seek allowing those hiding to come out without losing, smokers under age 21 have been given the “olly olly oxen free” chant by the Legislature.

It’s simply brilliant of the Legislature to discourage an activity by making it legal to engage in that activity. Next up, to address the property crime wave created by Prop 47 making thefts under $950 consequence free, expect a bill legalizing the possession of stolen property!

Heckuva job, California Legislature, heckuva job.

Those Who Care About Victims of Sex Crimes Should Oppose Gov. Brown’s Initiative

By Michele Hanisee

The Senate Public Safety Committee recently passed AB 2888 in response to the outrage in California and across the country over the probation sentence given to Stanford swimmer Brock Turner for his sexual assault of an unconscious woman.

AB 2888 would make prison mandatory for anyone convicted of eight specific sexual assault crimes, with most of those changes affecting sex crimes involving alcohol and any other “intoxicating or anesthetic substance.”  However, this legislation (which I suggested in a recent blog) will be drastically undercut should Governor Brown’s initiative, providing for early release of sex offenders and other violent felons, pass this November.

The reaction to the Brock Turner sentence reflects the thinking of most people that sex offenses are degrading crimes that must be punished by meaningful incarceration.  Even those considered liberal on crime and punishment such as State Senator Mark Leno weighed in to support the bill, with Leno referring to the sex crimes covered by the bill as “despicable crimes.”  I say most, because predictably the ACLU was opposed, claiming mandatory prison sentences punish communities of color.  No doubt sex offenders were grateful for the undying support of the ACLU.

However, this well intentioned bill and all other current laws punishing sex offenses are about to be drastically undercut by Governor Brown’s initiative.  These include laws punishing sex crimes such as rape of an unconscious person, rape by use of an intoxicating substance, or rape where the victim was legally incapable of giving consent.  Likewise, Penal Code Section 667.6, subdivision (c), permitting the imposition of a full, separate, and consecutive term for each violation of certain sex offenses and subdivision (d), permitting the imposition of a full, separate and consecutive term for additional crimes involving different victims or the same victim on a separate occasion, will be gutted by Governor Brown’s initiative.

How are these sex crimes law eviscerated?  As the California District Attorneys Association analysis explains, Governor Brown’s initiative rewards prison inmates by allowing them to only serve the term for one count for which they were convicted (their “primary offense.”)  Any additional time they were sentenced to by a judge, be it a consecutive sentence as in Penal Code section 667.6 or an enhancement for harm done or loss caused, can be ignored and the inmate paroled. Thus inmates convicted of sex assaults against multiple victims will only have to serve the same amount of time as inmates who committed one sexual assault against one victim.

Other laws affecting sexual offenses, such as those aimed at human trafficking, are likewise gutted. Governor Brown’s initiative allows for consecutive sentences for multiple victims of a human trafficker to be disregarded.  In addition, the initiative allows for increased “conduct credits” for all inmates, including those convicted of human trafficking, thereby providing these inmates an earlier release from prison.

Governor Brown’s initiative devalues victims of sex offenses by allowing inmates to escape increased prison sentences imposed for multiple offenses or multiple victims.  Those who believe every sex assault victim deserves a measure of justice by having the person who assaulted them serve time in state prison should oppose Governor Brown’s initiative.

Likewise, those who believe every victim of human trafficking deserves individual justice, and that the person trafficked should serve time for every person they put into sex slavery, should oppose Governor Brown’s initiative.   As I perused the list of the legislators who supported AB 2888 and their reasons why, I wondered how many of them will be opposing Governor Brown’s initiative?

Prisoner, Prisons and Jails-A Reality Check Which Includes A Discussion About Victims

By Michele Hanisee

Several pieces in the Los Angeles Times regarding prisoners, mental health, and TV shows portraying same caught my eye, and frankly, require a response.  It is clear that a false narrative is developing of state prisons packed with non-violent offenders.  Baloney.

It’s important that any discussion be guided by facts, not anecdotes or singular cases. First, a little statistical analysis courtesy of the California Department of Corrections is in order.  California’s most current “Prison Census Data” ending December 31, 2013, tells a revealing story about the 128,211 male and 6,128 female inmates serving time in state prison.  More than 70% of the total inmate population is serving time for “Crimes Against Persons.”  What are “Crimes Against Persons” as defined by the report: “Murder, Manslaughter, Robbery, Assault with a Deadly Weapon, Assault/Battery, Lewd Acts with a Child, Oral Copulation, Sodomy, Penetration with a Foreign Object, ‘Other Sex Offenses’, and Kidnapping.”

But wait, what about those “non-violent offenders” and “drug offenders” filling our prisons?  Well, 6% of inmates were convicted of the “non- violent” offense of residential burglary,less than one percent are in for all other “property crimes.”  Those in for “non-violent” drug offenses include inmates convicted of possessing, selling or manufacturing drugs, and they represent just more than 8% of the prison population.  The oft-touted “inmate in for marijuana,” that is the person serving time for marijuana sales, represented .03% of the inmate population; those for possession of marijuana a whopping 0.0%.

I detail those statistics above to remind those who opine on the criminal justice system that the inmates represent real people who have suffered.  No, not the inmate, their victims. The victims who did not make a decision, as did the 70% of prison inmates, to engage in a violent crime. They, instead, were subjected to the awful trauma inflicted on them by the inmates. The resources provided by the State to these victims is a mere band-aid – basic burial expenses or a few sessions of counseling, at best. They are not glorified in TV shows or “documentaries” to lament their plight.  Instead, victims get to make an appearance at a preliminary hearing and trial, to relive their trauma under often hostile questioning from a defense attorney, are allowed to make a victim impact statement at sentencing. They are then promptly forgotten by a system that pours its resources into incarcerating and “rehabilitating” their victimizer.

There is an escalating mantra, exemplified by Meredith Blake, an entertainment reporter for the Los Angeles Times, of a growing awareness of “mass incarceration…and its disproportionate effects on communities of color.” That liberal hyperbole places the victimizer ahead of the victim.  Don’t the citizens of the “communities of color” deserve protection from those 70% of inmates who committed murders, sexual assaults, kidnappings and other violent crimes? Take Chicago, which has suffered 303 homicides in 2016 with 75% of victims Black and 19% Hispanic.  Is there an acceptable level of victimization in a particular community before we can begin incarcerating those who committed the crimes?

Likewise, the growing claim that prisons are just populated by low level, non-violent offenders who would probably provide amusing anecdotes at a cocktail party deserves a bit more scrutiny. Let’s be very clear – I am not averse to actress Laverne Cox’s statement that her show Orange is the New Black has sparked a conversation “that really is about humanizing people who are incarcerated.”  What I object to is falsely representing the type of crimes that have led to incarceration, and most particularly, the obsessive focus on those who have chosen to victimize others and the abject indifference to the real pain and suffering of their victims.