The destruction Chuck Reed wants to bring to California

This past month saw verdicts rendered on San Jose Mayor Chuck Reed.  The first verdict came from the City of San Jose, where after reeling from two years of real life consequences of Reed’s 2012 pension measure, the City’s Mayor announced a settlement with police and fire unions that eliminated the substantive changes Reed had enacted.

The second verdict came in the form of an analysis by the nonpartisan Legislative Analyst’s Office (LAO) of the initiative Reed wants to place on the 2016 ballot.  Reed’s proposed initiative would impose pension, compensation and retiree health care changes on all public employees in California.  Reed’s changes in San Jose proved to be disastrous, but the future changes he proposes for California would be catastrophic

In 2012, Reed pushed through Measure B in San Jose, as he waged a full scale war on public employees through derisive name calling, lying about the scope of pension deficits, and a refusing to consider real pension savings of $467 million at the bargaining table.

Reed’s Measure B was draconian, cutting pension benefits for future employees, imposing crippling costs on current employees who wished to stay in the pension system, and in practice ending disability benefits for all employees.  For example, San Jose police officers who wish to keep their current pensions would have to pay nearly 41% of their pay into the pension system. 

The “disability reform” in the measure was even more drastic.  Normally an officer who is injured in the line of duty and unable to return to police work receives a disability retirement.  Reed’s measure prohibited an officer from receiving disability retirement if the officer could perform any other function in the police department (dispatcher, evidence technician, etc.) — even if there was not an opening for the other position!

Needless to say, the City of San Jose became the “place to be from” for public employees, not the place to work. A once proud police department of 1,350 officers was reduced to 850 officers, as officers retired or left for other police agencies.  Recruitment fell off the cliff-Academy classes authorized for 60 cadets averaged less than 15, with many cadets leaving upon graduation for other departments.

Community public safety suffered immediately.  With a shortage of patrol officers and detectives, the crime rate soared above the national average, as murders increased 33 percent and robberies increased 37 percent over 2004 rates.  Sex crimes detectives who remain carry caseloads approaching 60 cases.  There is one property crimes detective for the entire city.  Vehicle theft increased 61%, and with motorcycle officers cut from 36 to 10, vehicle fatalities increased 61% over 2010 numbers.  The fire department was so short staffed it could not meet their minimum response times.

In addition to the exodus of employees, the City spent millions in court in an unsuccessful attempt to uphold Reed’s initiative.  A Superior Court ruled that the imposition of pension costs on employees violated the California Constitution, but did uphold the measure’s 16% pay cut if the pension increases were struck down in court.  However, rather than impose the cuts, the San Jose City Council was forced to give large raises to employees in an attempt to retain them; as an example – 10% for police officers, 14% for fighters.

Reed’s real life experiment in the City of San Jose has been an unmitigated disaster.  Unable to admit defeat, and in a statement reminiscent of the infamous “It became necessary to destroy the town to save it,” Reed claimed the settlement “protected much of the savings” in Measure B.  That statement ignores reality-any “savings” that occurred in the two year period came about because of the enormous number of vacant city positions.  As employees left, replacements could not be hired and public safety suffered as a result.

Reed’s 2016 ballot measure makes his Measure B look like a minor tweak.  The 2016 initiative is a full scale assault on every aspect of public employee benefits and compensation, NOT just a “pension initiative concerning future employees,” as he claims. 

Current employees will see their vested pension rights, known as the “California rule”, eliminated. This means that for future years of work the formula under which current employees accrue service credit for pensions could be decreased—or eliminated.  The same would apply for retiree healthcare benefits.  However, the initiative goes beyond pensions and retiree healthcare.  It eviscerates collective bargaining, allowing initiatives to direct the county as to what to offer in negotiations and referendums to overturn any collective bargaining agreement that may be reached.

Future employees fare worse because the initiative forbids new employees from joining the pension plan or even enrolling in a 401k plan unless specifically approved by voters.  Any plan they do join will be subject to modification or elimination by voter initiative at any point in their career.  Disability retirements for all employees, including police, firefighters and lifeguards, will be eliminated as those benefits are provided through defined benefit plans which the new employees cannot join. And, the new employees will see their salaries subject to change at any time by initiative or referendum.

The initiative affects retired employees as well, as it threatens the ability of every pension system in the state to accrue the funds needed to pay benefits.  The initiative prohibits pension funds from using commonly accepted financial techniques to close any funding gaps that may arise as a result of plan changes imposed by the initiative.  Aninternal analysis by CALSTRS released this week confirmed the fund would be put at risk should this initiative pass.

If that were not enough, local or state initiatives would be allowed to change current pension plans: those changes could include overriding state restrictions or regulations, making it highly likely plans would be destabilized or bankrupted, as well as possibly being in violation of federal or state tax requirements.

The detailed LAO analysis, the first official view of Reed’s initiative, confirms that Reed’s measure goes far beyond whether future employees may be enrolled in defined benefit plans. The LAO, after noting the initiative’s effect on current employees, disability benefits and collective bargaining, concluded that, “There is significant uncertainty as to the magnitude, timing, and direction of the fiscal effects of this measure and its effects on current and future governmental employees’ compensation,” with lengthy court battles predicted should the measure pass.

The next step before circulation of the initiative is a “Title and summary” by the Attorney General.  This, in contrast to the LAO report, will be a detailed legal analysis of the initiative.  In 2014, an accurate Attorney General analysis of a Reed pension initiative that was upheld in court prompted Reed withdraw the initiative. We will see what he does after his latest scheme undergoes legal scrutiny by the Attorney General.

Please read our previous pension blogs Attention Shoppers: Don’t Sign that Misleading Pension Petition!, Your Pension is Under Attack and Fuzzy Math Continues To Drive Public Pension Hysteria.  If you want to learn more about pensions, we encourage you to visit Let’s Talk Pensions.

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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.

California Only Needs An Execution Protocol To Carry Out The Death Penalty

[Michele Hanisee]

The world contains extremely dangerous and evil people who cannot be deterred by threat of incarceration.  I’m not talking about the average gang murder or robbery gone bad.  I am talking about the people who rape infants to death, who kidnap, torture, rape and murder children, who target police officers in the line of duty, who kill not just one, but a half dozen or dozen or more innocent victims in serial and mass murders.  These people are the reason why California still needs a death penalty.

If the punishment for one murder is life in prison, how do you punish someone for three murders or five murders?  How do you deter a prisoner serving a life sentence from killing a fellow inmate or guard if there is no additional penalty?  How can no-additional-punishment for additional murders be justice for victims?

You may be wondering what happened to California’s death penalty.  Seventeen of the 750 inmates on death row have completed all their appeals and are eligible to be executed.  So what’s the problem?   The problem is that the state does not have an execution protocol.  The California Department of Corrections and Rehabilitation (CDCR) has not bothered to enact a new regulation so that they can resume executions after the last protocol was invalidated by a state court judge.

Despite the 2014 vote by a majority of Californians to keep the death penalty, the CDCR and the Governor’s office have effectively been nullifying the law by failing to enact a regulation by which to enforce that law.  While the CDCR details the history of the death penalty on their website, they fail to acknowledge that  a draft of a protocol for the single-drug method of execution that the state was requested to switch to by a Federal Court Judge has been sitting on the desk of the CDCR for over a year now, gathering dust.

It is easy to see why Governor Brown would be reluctant to put the state in a position to resume executions.  With 17 inmates having exhausted all appeals, it would put Governor Brown in the awkward position of being an anti-death penalty governor who executed the most condemned inmates of any governor in state history. The Governor can’t even grant most of them clemency since the State Constitution prohibits the Governor from granting clemency to a person “twice convicted of a felony.” So, instead of carrying out the law, the Governor is asking the Legislature for $3.2 million to open nearly 100 more cells on death row.

A lawsuit filed by the Criminal Justice Legal Foundation on behalf of crime victims, Bradley Winchell and Kermit Alexander pressed the issue and led to a settlement that will hopefully put the state in a position to resume executions in a year or two. The last execution in California occurred in 2006.   The settlement requires CDCR to begin promulgating an execution protocol within 120 days of the U.S. Supreme Court’s opinion in Glossip v. Gross

The Supreme Court ruled that the sedative midazolam can be used without violating the constitutional ban on cruel and unusual punishment. It should be noted that some people opposed to the death penalty support physician for assisted suicide which then begs the question; how can an execution drug be considered cruel when it’s the same drug being used by doctors for assisted suicide?  The court answered the question, it is not.

There are still hurdles to clear before the state stops dragging its feet and implements the voter approved death penalty.  All state regulations are subject to the Administrative Procedures Act (APA) which requires that the proposed regulation undergo a public vetting process that permits the public to comment on the proposed regulation.   This concept makes sense when you are talking about a regulation covering business or industry.  It allows the affected business to provide input about how the new rules would affect them and lobby for changes.   But in the context of an execution protocol, allowing public commentary and requiring the department to provide a “meaningful response” to every single comment, creates a logjam.   The last time CDCR put an execution protocol though the APA process they were flooded with over 30,000 comments from death penalty opponents from all over the country.

Marin County Superior Court Judge Fay D’Opal is the one who ruled the last protocol invalid.  She said that CDCR did not “meaningfully” respond to every single one of the 30,000 comments and that CDCR failed to explain why it did not adopt the single-drug execution method recommended by its own expert.

If California does manage to get past the APA and get a regulation enacted, there will be few remaining barriers.  The United States Supreme Court decisions in Baze v. Rees and in Glossip v. Gross have rejected challenges to the three-drug protocol formerly used by most states including California and the new two-drug protocol being used in Oklahoma.  The 9th Circuit Court of Appeals has already denied stays to single drug executions in other states within its jurisdiction.

Once California has an execution protocol in place, there is little the Governor or the Attorney General can do to thwart the implementation of the law.   After all appeals are final, jurisdiction over these cases returns to the local District Attorney and the local courts.   It is the local District Attorney and court who then schedule an execution date.  CDCR has no more power to refuse compliance than they have to refuse to accept a sentenced prisoner for housing.

It is important to remember that only a jury of one’s peers can impose death – not the police, not the District Attorney, not the judge.  Jury verdicts are rendered by the citizens of the community because they have the strongest interest in keeping their communities safe and protecting residents from the criminals who would prey on them.  The people of this state voted to keep the death penalty and the Governor and Department of Corrections have an obligation to honor the will of the voters and impose the law of this state.

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Michele Hanisee is Vice President of the Association of Deputy District Attorneys. She can be contacted at mhanisee@laadda.com. The views and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of ADDA, which represents nearly 1,000 Los Angeles Deputy District Attorneys.

Sanctuaries from Justice

[Marc Debbaudt]

The recent murder of Kathryn Steinle in San Francisco has cast a harsh spotlight on “sanctuary cities,” a term given to communities that shelter illegal immigrants and where local law enforcement agencies are discouraged if not outright forbidden from cooperating with federal immigration authorities.

The suspect in Steinle’s murder, Juan Francisco Lopez-Sanchez, is an illegal immigrant who had accumulated seven felony convictions and had been deported from the U.S. five times. He had been released from his most recent prison sentence shortly before he allegedly gunned down Steinle in broad daylight while she was walking with her father on a pier. He was free to roam the streets because San Francisco is one of the cities that refuse to cooperate with federal immigration authorities. In other words, had he been held for deportation this murder would never have happened. Indeed, according to the Washington Post, he told authorities that he came to San Francisco specifically because he knew the city would not turn him over to the feds! This criminal came to San Francisco for  sanctuary and it was sadly everything but that for Steinle.

Backers of sanctuary city policies claim that crime victims and witnesses to crimes who are in the country illegally are reluctant to cooperate with police if they believe police will cooperate with immigration officials. But the policy of holding a criminal for ICE simply doesn’t apply to victims and witnesses. While their reluctance may sound plausible on the surface, it ignores one simple and inconvenient fact: there is no study or other empirical evidence showing that sanctuary city policies have helped solve crimes by increasing cooperation with police and prosecutors.

Some national leaders are pushing for passage of Kate’s Law, a federal law that would provide that if an illegal immigrant who was already deported is re-arrested in a sanctuary city, local law enforcement would be required to immediately notify U.S. Immigration and Customs Enforcement and to hold the illegal alien until ICE picks them up.

Some have seized upon Steinle’s murder to promote xenophobic views to further their personal political goals. That is wrong and it is abhorrent. I’m not against immigration or amnesty for those who have established themselves in our country and who obey our laws. I am against criminal immigrants and protecting immigrants who come here and commit crimes. But Steinle’s tragic death has fueled an important public policy discussion, and it has exposed the fallacy of the feel-good, laissez faire attitude toward illegal activities.

The reality is that any policy that turns a blind eye to illegal activities – including those that make it easier for people to remain in this country illegally – is a bona fide threat to public safety. Take, for example, SB 1310.

This bill, which Gov. Brown signed into law a year ago, reduced the maximum sentence for a misdemeanor from 365 days to 364 days. Why the one-day reduction?  Because under federal law, a sentence of 365 days or more classifies a crime as an aggravated felony, triggering deportation hearings for noncitizen legal immigrants.

But what the backers of SB 1310 didn’t advertise is that the law is designed to benefit those who are here illegally and commit crimes. The law does nothing for legal citizens of this country. It was constructed solely to benefit legal immigrants who do crimes and those in the country illegally as well. So one must ask – what was the true motivation behind this piece of legislation?

We all know that sanctuary cities and flawed legislation such as SB 1310 are not the only public policies that are threats to public safety. Perhaps the greatest threat of all is Proposition 47 which we discussed in a previous blog. Along with SB 1310, we’ve turned felonies into misdemeanors and then these same misdemeanors into non-deportable offenses all so that we can keep criminal illegal immigrants from being deported. Why would we even want do that?

As we know all too well, Prop. 47 coddles drug abusers and thieves – regardless of whether they are citizens, legal noncitizens or illegal noncitizens – by turning serious felonies into misdemeanors. Not surprisingly, violent crime surged 21 percent across Los Angeles during the first six months of 2015 following Prop. 47’s passage. Is that a mere coincidence? I’m sure some want to believe that.

It’s becoming clear that poor public policies promoted by callow elected officials are creating a perfect storm in which crime is able to thrive because it goes unpunished. In fact, the San Francisco Deputy Sheriffs’ Association called the Department’s order that mandates “limited contact and communication with ICE representatives absent a court-issued warrant, a signed court order, or other legal requirement authorizing ICE access” reckless.

One has to wonder when that perfect storm will become a tipping point that will mark a descent into the violent lawlessness that plagued the state in the 1980s and 1990s. This isn’t just the natural swing of the pendulum back from the movement that led to Three Strikes. This is a concerted effort by some pushing hard on the pendulum to further a reckless social agenda.

One also has to wonder how many more Kathryn Steinles will be sacrificed at the altar of political correctness before our elected officials do the right thing and take meaningful action to restore sensible cooperation with ICE that protects all law abiding residents in the state, legal or illegal.

Marc Debbaudt is President of the Association of Deputy District Attorneys. He can be contacted at mdebbaudt@laadda.com. The view and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of ADDA, which represents nearly 1,000 Deputy District Attorneys.

ADDA participation in the political process

As we approach the elections of 2016, we would like to reiterate the reasons for the ADDA’s involvement in the political process and our criteria for involvement in various races and ballot initiatives.

Through our ADDA Political Action Committee (PAC), we take a proactive role in representing the interests of nearly 1,000 deputy district attorneys in Los Angeles County that we represent. We use the PAC to amplify your voices in the political process through candidate endorsements. We concentrate on candidates and issues that effect and influence our compensation, benefits, work environment and professional standards.  In order to best represent your interests, it is imperative that we remain informed and involved in the local, county, regional, state and national political processes as well as legislation that impacts our daily work life. Our PAC serves as our voice in that process and is a comprehensive resource on candidates and issues.

As a matter of policy, the ADDA will endorse candidates for the key LA County-wide offices: Judicial Officer, District Attorney, Board of Supervisors, Sheriff and Assessor.

Decisions on whether to endorse for Los Angeles City Attorney, California statewide offices and California legislature, or ballot initiatives are made on a case-by-case basis.

For judicial offices, the ADDA discourages multiple deputy district attorneys running in the same judicial race. The ADDA will consider endorsing the deputy district attorney who first files for a particular office.  Only in unusual circumstances will ADDA consider endorsing multiple deputy district attorneys in the same judicial race. In order for there to be multiple endorsements in a single race there must be a super majority vote of the ADDA board.

Our standardized process starts with a questionnaire presented to all candidates. The questionnaire covers a wide range of background information that gets to the character and personal integrity of the candidates.

For incumbents seeking re-election, we look closely at their voting records, past support and assistance on issues, bill/motion sponsorship or support, and an assessment of their commitment to public safety, officer safety, criminal justice and public employees.

Those candidates who return our questionnaire are invited to a screening interview with the ADDA’s Endorsement Committee to judge the qualifications of each candidate and the affect an endorsement would have on the ADDA membership.

We publish these guidelines ahead of the election season so our process of endorsements and involvement with political candidates is transparent and understood by our members, candidates, and the public.

We look forward to the elections of 2016, and will keep our membership informed of our participation in those elections. If you have questions or comments, please get in touch with an ADDA board member to learn more.

To read our previous blogs click here. If you have friends or family who would like to be added to our mailing list, click here.

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.

 

Legislation Calling for Independent Police Prosecutor is Unnecessary

[Marc Debbaudt]

California Assembly Bill 86, which was introduced this year, seeks to remove District Attorney Offices from reviewing police shootings and deciding if criminal charges should be issued. This bill reflects a fundamental misunderstanding of the role of a prosecutor and the administration of justice.  It is bad public policy and, indeed, would undermine the pursuit of justice and threaten the safety of police officers and residents throughout California.

In the words of famed Supreme Court Justice Robert Jackson, “a prosecutor should seek justice” when making a decision to file charges.  Seeking justice does not mean filing charges when injustice would result. It does not mean filing charges to satisfy politics, public opinion or make a social statement. And it does not mean a District Attorney’s Office should abandon its role as gatekeeper of justice and pass the buck by filing charges to let the jury decide.

In the Los Angeles County District Attorney’s Office, the Justice System Integrity Division evaluates each civilian death that results from interaction with police.  Their standard for filing charges is whether there is legally sufficient and admissible evidence to prove the defendant is guilty of the charged offenses. The filing prosecutor must conclude that a reasonable fact finder (either a judge or jury) would convict the defendant given the most plausible, reasonably foreseeable defense inherent in the prosecution evidence. This decision is then approved by the District Attorney. It is widely known among participants in the criminal justice system, if not the public, that: “To be reasonable is not to be perfect, and so the Fourth Amendment allows for some mistakes on the part of government officials, giving them fair leeway for enforcing the law in the community’s protection.”  Heien v. North Carolina (2014) 574 US ___ , WL 7010684.

Unfortunately, AB 86 accepts the false notion that local District Attorneys cannot be entrusted with evaluating cases in which a civilian dies after interaction with the police.  Assemblyman Kevin McCarty, who authored the bill, claims “There is skepticism in the current process where local DA’s investigate cops they work most closely with.  To foster better transparency in the process, a common sense reform would be to have an independent review process by the Department of Justice to investigate police shootings where a civilian death occurs.”

Hogwash!

In the Los Angeles District Attorney’s Office there are nearly 1000 deputy district attorneys. No one is investigating “cops they work most closely with.” That just doesn’t happen in my experience, and this office would not tolerate that kind of obvious bias.

Although the bill’s author claims he only seeks to ensure “the community trusts that fatalities are thoroughly reviewed” and is not seeking the prosecution of more officers, the reality of his goal is different.  The people who mistrust District Attorney reviews will be no more trusting of an independent prosecutor’s reviews unless officers are continually prosecuted.  These critics aren’t upset at the review process; they are upset that more police officers aren’t prosecuted.  One just has to listen to the news to hear countless demands in the aftermath of recent police shootings that the officers should be charged and that it should be left to the “jury to decide” if the action was criminal.

Events in Baltimore illustrate why prosecutions driven by public fervor are terrible public policy.  In announcing her decision to prosecute six officers a scant 24 hours after receiving the case reports,  Baltimore States Attorney Marilyn Mosby made clear she was reacting to perceived public pressure when she stated, “To the people of Baltimore and the demonstrators across America: I heard your call for no justice, no peace.”

Mosby’s decision to prosecute based upon public pressure has created dangerous conditions for law enforcement professionals.  Highly respected  Baltimore Police Commissioner Anthony Batts told the City Council, “If I get out of my car and make a stop for a reasonable suspicion that leads to probable cause but I make a mistake on it, will I be arrested? They pull up to a scene and another officer has done something that they don’t know, it may be illegal, will they be arrested for it? Those are things they are asking.”

As a result, Baltimore police have stopped actively policing.  Arrests in Baltimore have  dropped 50 percent in recent weeks, but not because crime is dropping.  In fact, with 38 homicides, this was the deadliest month in Baltimore in fifteen years.

The  Peace Officers Research Association of California got it right when they stated, “District Attorneys are elected by their counties to handle these types of investigations.  District Attorneys have made decisions for years, and have overseen difficult cases that have been scrutinized heavily by the media and public.  The concern that there would be a conflict of interest between a District Attorney and officers they may work with is unfounded.   District Attorneys routinely prosecute peace officers when they believe there is sufficient evidence to prove a crime beyond a reasonable doubt.  It is a District Attorney’s ethical duty to ensure the fair administration of justice, without regard to who is being investigated.”

AB 86 is bad public policy, plain and simple. It will set in motion a chain of events where police know that their actions will be scrutinized by an “independent” prosecutor, a position created by political pressure to go after the police. This “independent prosecutor” won’t be independent at all but will face public pressure to charge, and instead of making the just decision up front whether to file or not, will instead choose to let a jury decide if an officer’s action was criminal.  The logical response is what we see by Baltimore police officers:  Avoid any situation that may remotely involve the potential of use of force and a potential subsequent prosecution.

Finally, the “skepticism” surrounding police shooting is not a problem that rises to the level of indicting the system and requiring fundamental change. Not to minimize the disturbing nature of legitimate police misconduct when it occurs, it is a statistical anomaly given the number of police officers and crimes they investigate every day, every year, across this nation. That the media sensationalizes the few examples, the actual numbers demonstrate that the system is working at virtual perfection and correcting itself when the anomalies occur. Creating an additional independent prosecutor bureaucracy to address anomalies does not cure the problem, but creates a new one on top of a system that is already operating at a high level of integrity. Nothing is solved, just politics and money thrown at an exaggerated problem creating a whole new opportunity for unexpected consequences and collateral damage.

The Assembly has put aside AB 86 for this year. Let’s hope the bill is killed forever. The proposed law is not just dangerous for police and residents, it’s unnecessary because the Attorney General already has the authority to investigate and prosecute any case in which they believe criminal conduct has occurred.

Marc Debbaudt is President of the Association of Deputy District Attorneys. He can be contacted at mdebbaudt@laadda.com. The view and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of ADDA, which represents nearly 1,000 Deputy District Attorneys.

Fuzzy Math Continues To Drive Public Pension Hysteria

Public employee pension systems are an integral part of recruiting and retaining high-performing public employees. They align the interests of the employer and the employee.  A pension allows attorneys to work for the county District Attorney despite the prospect of a higher income in private practice. Once hired, DDAs have an incentive to stay during the most productive years of their career; and at the end of that career, DDAs can leave the office rather than cling to the job because it is their only source of income.

Pensions are particularly important in public agencies such as Los Angeles County, where employees are not enrolled in Social Security. Instead, a pension is the sole source of guaranteed income during retirement.

A District Attorney’s Office with a 401k plan in lieu of a pension will be an office with short-term and higher-cost employees.  Future DDA’s, with neither Social Security nor a guaranteed pension will undoubtedly demand higher wages to pay bills and fund their retirement-or will leave for  higher or equivalent-paying jobs in which Social Security becomes a backup income stream.

We know from recent media accounts that John Arnold is planning national PR campaign against pensions. While we wait for Chuck Reed and Carl DeMaio to release the initiative details after they finish huddling with the out-of-state handlers who will be funding their pension rollback scheme, we will use this blog to address and debunk some of the dishonest arguments that have been employed against public pensions.

Overstating the costs of public pensions is a staple of pension opponents.  It is sometimes done through outright lies, as seen by Chuck Reed who lied in the run-up to a 2012 pension initiative in San Jose.  When he was mayor of San Jose, Reed repeatedly and falselyclaimed the initiative was needed because 2015 pension costs would soar $650 million; a state audit revealed the 2015 projected costs to only be $320 million.   (The actual 2015 costs ended up at $308 million.)  Caught red-handed overstating the pension costs by 100 percent, Reed defended his false and misleading continual use of the $650 million figure by simply proclaiming, “The figure is not overstated, the figure is just a number.”

Another way to overstate costs is to inflate the cost of employer contributions.  Pensions are funded by a combination of investment income and yearly mandatory contributions from employees and employers.  Since annual investment returns cannot be known in advance, pension funds use “assumed rates of return” to estimate investment income for each year, with the balance needed each year coming from contributions. Pension opponents routinely generate headline-grabbing pension contribution costs by using assumed rates of return that are drastically lower than the pension systems’ assumptions because  a lower assumed rate dramatically increases the employer contribution.

Yet another misleading tactic is to compare employer pension costs with prior years where the costs were unusually low. This is done by using as the comparison point a year in which the employer contribution was reduced or eliminated due to a “pension contribution holiday.”  Employers often reduce their contribution in years where higher assets are generated by stock market gains.  As outlined in a 2011 Paul Weber op-ed , using these artificially low contribution rates was a particular favorite of former Governor Schwarzenegger and his “special advisor,” David Crane. They often cited rates from the early 2000’s – which were lowered because of “pension holidays” funded by market gains in the late 1990’s as the comparison for then-current contribution rates.

The current controversy over the University of California system and the increase in tuition and costs, partly to fund employee pensions, is a notable example of how pension holidays end up affecting current operating budgets.  In 1990, the UC system began a 20-year contribution holiday and used money that should have been paid into the pension system to fund ongoing operating costs.  The result: funded status plunged from 156 percent in 1990 to 75 percent in 2010, when contributions resumed.  The funded status would have been 120 percent in 2010 had contributions been made, and today’s larger payments would have been unnecessary.

Most recently, pension opponents have invented an argument that ongoing pension costs are “crowding out” other government services.  In this narrative, every dollar spent to fund pensions is a dollar that could be used to hire more employees or provide more services.  The “crowd out” argument, whether using actual or inflated pension costs, ignores several facts, such as:  the municipal budgets are bouncing back from the lows of 2009; the CALPERS and CALSTRS studies have shown every $1 in pension payments generates $10.85 in economic activity; and that as a result of the Legislature’s 2012 pension reform, public employees are paying more for pensions, with new employees paying 50 percent of the costs.

When all else fails, opponents resort to the argument that public employees should not be exempt from the 401k scheme which, as we outlined in our last column, has failed in its goal to provide retirement income for Americans. This “race to the bottom” argument was the mainstay of a recent pension rollback initiative in Ventura County, where the slogan stated: “public employees should receive a retirement benefit that is no better than the citizens that pay for it.”   Or, as an OC Register columnist recently stated, public employees are simply the lucky ones who get a secure retirement; “Folks watching their 401(k) accounts disappear can attest to that.

We will continue to use this column to update you on the attempt to roll back your pensions, and provide factual information to combat the fallacious arguments that will be used to advance the initiative.  Stay tuned.

Please read our previous blog titled “Your Pension is Under Attack” and if you want to learn more about pensions and get the facts, please visit a great website called Let’s Talk Pensions. It is run by Californians for Retirement Security, a coalition of more than 1.6 million Californians representing public employees and retirees.

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.

Reaping the Bitter Rewards of Proposition 47

A recent New York Times story suggested it’s time to reform the criminal justice system because according to the Times, in recent decades, the prison population has risen, while crime has fallen.

The story fails to make a connection between an obvious fact suggested by the statement: there’s a direct correlation between a falling crime rate and aggressive incarceration of violent and repeat felons.  Moreover, as a small segment of the population commits a very large percentage of crime, incapacitating them from doing so prevents them from committing more crime.

What is disturbing is the conversation about drug offenses is being used as cover to roll back effective crime fighting laws that incarcerate the repeat offender.  That was the case with Proposition 47.

Proposition 47 was falsely sold to voters as a sensible and compassionate reform of drug laws and sentences. In reality, under the guise of reform of “victimless” drug offenses, crimes that affect real people were made misdemeanors, which in reality means no punishment.  These offenses include purse snatching, check forgery, repeat shoplifting, theft by those with multiple theft convictions, entering businesses with the intent to steal, with intent to steal, and rather unbelievably gun theft and possession of date-rape drugs.  Along with other law enforcement organizations,  we opposed Prop. 47 not because we were opposed to reform, but because we had real concerns with the proposition.

As frontline prosecutors, we know that the reality is that the primary focus of criminals being prosecuted is twofold: “when am I getting out,” and “how much time do I have to do.”  Any seasoned prosecutor or defense attorney will confirm this.  In fact, countless times, criminals will accept plea deals subjecting them to much longer punishment in the future, just so they can be released today.

More than 115,000 criminals have asked the courts to reduce their sentences from felonies to misdemeanors, according to a recent report by San Francisco NPR station KQED. More than 3,200 – many with violent crime histories -have been released so far from state prisons.

Earlier anecdotal evidence of the law’s effect is troubling. According to a recent  Los Angeles Times report, local narcotics arrests have plunged because it’s not worth officers’ time to process misdemeanor cases.  A Times analysis of crime data shows property crimes, including burglary, theft and motor vehicle theft, surged in much of the county since Proposition 47 passed. Of the nearly 4,500 people that L.A. County sheriff’s deputies arrested on Proposition 47 crimes since early November, more than 460 have been arrested again.

Among other things, the measure provided no incentive for rehabilitation.  As we predicted, the initiative impacted Drug Courts since there is no incentive to do an 18 month to 2 year intensive treatment program when the maximum consequences for a drug conviction is a six month misdemeanor term in county jail. And we know with overcrowding a six month county jail sentence means only a few days or in some cases hours in LA County Jail.  In addition to removing effective sanctions for criminal offenses, the removal of incarceration as a viable consequence has decimated programs the previously successful Drug Courts program.  A key part of ensuring that convicted drug users entered and completed the program was the ability to hold incarceration as a consequence of not following conditions from previous cases.  That effective “stick” has been removed.

The truth is that people who commit crimes change their ways when they want to, on their own timetable. The sad reality is that most criminals haven’t been waiting for the day that numerous community programs could be enacted so they could change their criminal ways.   As the old saying goes, they reform their ways when they are “sick and tired of being sick and tired.”  All the well intentioned “interventions” in the world will not succeed unless the person who is the subject of the “intervention” wants to change.  In the interim, until they reach that state, keeping them locked up and unable to harm society benefits society.

Proposition 47’s legacy will continue to reverberate well into the future. For example, thousands fewer DNA samples are being taken from suspects every month because state law allows police to collect DNA only from felony suspects. Fewer DNA collections will make it much harder – if not impossible – to solve old violent crimes such as murder and rape.

There is a small glimmer of hope. Some state legislators have taken action to address Proposition 47’s most egregious flaws.   Assembly Bill 390 would require anyone convicted of the crimes reduced from felonies to misdemeanors by Proposition 47 to still have to submit their DNA to the state database.  Assembled Bill 150, introduced by Assemblywoman Melissa Melendez, would reinstate the felony grand theft charge for gun theft. “Those who oppose making gun theft a felony must want to keep the punishment consistent with the leniency they are giving sexual predators,” Melendez told us. “I’ll give them this – at least they’re consistent.”

But even if AB 150 passes and Gov. Brown signs it, state voters would still have to amend Proposition 47 to include the bill’s provisions.

The ADDA, along with most California prosecutors and law enforcement agencies, vigorously opposed Proposition 47 because it was an ill-conceived and harmful measure that we knew would have unintended consequences.  We haven’t given up the fight to fix the flaws in the initiative. We will continue to do everything possible to fix the most serious problems with the measure by working with elected officials on reforms, by warning people about its disastrous effects, and by informing them when crimes occur because of it.

One has to wonder how many crime victims it will take for state voters to regain their senses and fix the mess they created when they enacted sweeping reforms to our criminal justice system.

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. 

Why are victims playing second fiddle to convicted criminals?

[Marc Debbaudt]

Given that prison is full of people who have proven incapable of following the law and respecting the rights of others, it is certainly bad to be incarcerated. Yet, in the debate over prison and punishment in California, the one who should be at the front of the line is being thrown to the back; the victims of the criminals.

For most of us, depriving our freedom would be awful. Incarceration is admittedly a bit more than depriving one of freedom. Incarceration as punishment is compounded by forcing criminals to mingle with other criminals; for most of us, we would not sleep too well. Most of us would do anything to avoid that fate.

The reality is that county jails and state prisons are not pleasant places. One of the reasons our society sentences people to prison is to deter people from committing crime and to send a message that we will take away your freedom. The fact is that the indignities of incarceration are not worth the benefits of committing a crime.

Perhaps the lack of jobs available for criminals when they are eventually freed compels them to commit more crimes. Perhaps their untreated mental health issues overcome good judgment. Perhaps their substance abuse problems were not dealt with sufficiently while they were incarcerated. I’m sure these all play some part in why criminals, when released, voluntarily choose once again to re-offend.

Then, again, perhaps some people choose to commit new crimes for other reasons. It could be that they learned some new ways to victimize others in prison academy, or maybe they are philosophically committed in their exercise of freedom of choice and free will to pursue as a preference the romantic outlaw life-style. Or, maybe incarceration isn’t so bad anymore; perhaps it’s tolerable and being caught committing additional crimes is worth the minor down-side risk.

I know I would not like to be incarcerated. It would be a radical change in my experience of daily life. But, then, I work for a living. My single-parent mother insisted I go to school. She insisted I get up and move and be on time because she had to work, too. My mom insisted I not miss school, because she could not miss work. She insisted I get a job and help pay for college. I didn’t get to just hang out and do nothing.  I didn’t realize until after I was done with college that I had a choice to not go to college.

The fact that recidivism is high does not mean that incarceration failed, unless you decide the only reason for incarceration is to prevent crime in the future. Does Punishment work? I think we can say with certainty that prison stops criminals who are incarcerated from committing new crimes while they are in prison. Isn’t that good enough? Well, maybe they commit new crimes against other prisoners.
Is incarceration effective? That is, does it teach the criminal a lesson that changes his or her life and dissuades them from committing future crimes? Maybe not. But is that a reason not to do it? Perhaps it simply does not matter if punishment works.  Perhaps it is enough that it is deserved.

What does our society do for the victims of crime? There is no government program that provides free one-on-one counseling after their lives have been traumatized, their property stolen. The government provides convicted criminals countless services, all devoted to improving the criminal’s life. The victim-a mere afterthought whose name appears merely to be the necessity by which the criminal can obtain those benefits. It reminds me of the old joke: Want to have your country rebuilt? Just declare war on the United States.

Well, prison is one source of restitution for victims. To the victims, whose voices are seldom heard, it does not matter if crime is reduced or eliminated by the use of punishment. What matters is that the criminal is punished for the criminal act they committed. Victims I work with on a regular basis aren’t really concerned that incarceration changes the life of the criminal. In fact, they may not even enjoy hearing about all of these noble efforts by the government to help criminals change their lives, which often times do not work. That is not their first priority.

Are there really methods more effective then incarceration as punishment that truly reduce future crimes and change the pattern of harmful criminal negative behavior?  Are they cheaper than incarceration? How effective are they? Do they serve justice to the victim of crimes? I think the evidence proves that there are no effective alternatives that make a sufficient statistical difference to warrant the expense.

While some people may disagree, punishment by incarceration is valuable if it accomplishes nothing more than making a victim of the crime feel better. And sometimes, it is an incentive that probably helps at least some prisoners reduce their criminal inclinations. As a lifelong prosecutor who has worked with countless victims, I tire of hearing that punishment does not help criminals or that recidivism is a good reason to get rid of our system of jails and prisons and replace them with expensive malarkey.

Why is this debate always focused on what is good for the prisoner, and not the victim?

Marc Debbaudt is President of the Association of Deputy District Attorneys. He can be contacted at mdebbaudt@laadda.com. The view and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of ADDA, which represents nearly 1,000 Deputy District Attorneys.

 

Punishment, Not Programs

[Marc Debbaudt]

The history of criminal rehabilitation is the history of failure. Efforts to reform outlaws by creating programs that encourage them to change their behavior may seem noble. But they just don’t work.

Most of our current rehabilitation programs are enormously expensive wastes of time. Of the diversion, Prop. 36 and drug court models, the latter was the most successful because it carried with it the sting of incarceration as an incentive to abide by the rules. But even the best drug court in Los Angeles County succeeded only around 25 percent of the time. The misguided social experimenters are selling nonsense in the guise of unreflective compassion for the criminal. The few criminals who benefit simply don’t justify the colossal expense we incur for the majority who fail.

The most successful method of rehabilitation should be providing the education that criminals failed to obtain when they were young. More than four-fifths of the people behind bars have a history of absenteeism and dropping out of school. But even education doesn’t work. Why? Because failed parenting has led to a failed education system. But sadly, there is little social will to address anything as sacrosanct as parenting.

Deterrence is another approach to discouraging criminal offenders. It is based on the hope that consequences and accountability will dissuade people from committing crimes. Denying someone’s freedom used to be one of the greatest punishments available. Prison was so bad you never wanted to go there and or return after you were released. But today’s prisons are no longer god-awful places. We give prisoners books, magazines and TVs. We allow them ample opportunities to exercise, smoke, make alcohol, inject drugs and have tattoos etched all over their bodies. They get free medical and dental care. No wonder there so many recidivists who choose to keep going back to jail, prison or the penitentiary.

Rehabilitation, education and deterrence have all proved to be woefully inadequate approaches to deterring crime. That leaves us with one alternative: punishment.

Punishment is the concept that the criminal deserves to suffer for what he or she has done. When defense attorneys inform me that their client needs therapy and a program, I respond: “The greatest therapy is accountability. The greatest program of accountability is state prison.” But now that temple of accountability is failing just as profoundly as deterrence. When one federal judge declares that state prison is overcrowded, that’s all it takes to set hordes of inmates free. As a result, there is no accountability, and what little accountability is left is being undermined as too expensive.

The shrill supporters of rehabilitation shriek that the annual per-inmate cost of imprisonment is $40,000 a year. That’s certainly enormous. But their fiscally based argument is specious. Freeing criminals doesn’t save money; it’s simply a shell game that shifts the money to failed rehabilitation programs. Moreover, we’re never told how much it costs to set a criminal free. How much to place him on parole or probation or in a program that doesn’t work? How much does the next crime he commits cost the individual who is harmed or society in general? How many crimes does he commit before he gets caught? How much does it cost to catch him, arrest him, investigate the new crime, and prosecute him in the courts once again?

We’re not really saving money by setting criminals free. We’re passing the buck. For a few dollars more up front, we could save tons down the road.

Marc Debbaudt is President of the Association of Deputy District Attorneys. He can be contacted at mdebbaudt@laadda.com. The view and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of ADDA, which represents nearly 1,000 Deputy District Attorneys.

Protecting Your Identity & Privacy in the Digital Age

[Michele Hanisee]

When considering privacy protection the most important piece of information that can be relayed is: DO NOT WAIT until there is a credible threat to take measures to protect yourself and your family!

In the digital age, personal online information is seemingly endless. Nevertheless, there are multiple ways to proactively protect yourself and your family within the following areas of vulnerability:

  • Public Records
  • USPS
  • Internet Data Vendors
  • Private Businesses / Direct Marketers
  • Social Media

Property Records

The same county that pays your salary will sell your residence address to anyone willing to pay for it. Real estate records are public records and cannot be made confidential. You have one of two options, either don’t own real estate or buy the property under the name of a blind, inter vivos revocable trust.

It is optimal to put your property in the trust when you make the initial purchase. Buying property in your own name and then transferring it to the trust after-the-fact is ineffective as it is obvious in the property records that the property is still owned by you.

The main hurdles to this type of property holding is that many banks will not approve a mortgage if the person assuming the loan does not hold title to the property, and even if you do get a loan, you may not be able to refinance and keep it in the name of the trust. Moreover, due to these difficulties you may end up paying a higher mortgage rate.

Nevertheless, if you are able to place your property in a trust, it’s important to remember not to name the trust after yourself. The “Your Name Trust” doesn’t hide your identity. In fact, avoid using your family name at all and don’t make either yourself or a family member who shares your last name the primary executor as the name of the primary executor vests as part of the title to the property. That said, bank rules change constantly. The bottom line is, when purchasing real property, talk to your bank about your options and then consult an attorney to form the trust to comport with what the bank needs.

Assuming you are successful in purchasing your residence under a blind trust, all it does is prevent someone from getting your address from the registrar recorder. It does not inhibit data vendors who find your address through other means and sell it on the internet.

Marriage Records

If you were married in California and have identifying information on your marriage license, you should consider applying for a confidential license. In order to obtain such a license, you must be living with your spouse at the time you apply and must sign an affidavit on the license attesting to those facts and, as mentioned, you must be married in California.  You must also file the license in the county where it was purchased.

Persons other than the married couple requesting copies of a confidential marriage license may only do so by presenting a court order to the County Clerk in the county where the license is registered.

Department of Motor Vehicles

Under California law, certain occupations, (police officers, DA’s Judges, etc.) allow for confidential of DMV information. Designated persons, their spouses and children may request home address confidentiality on any DMV record for any vehicle, driver license or identification card reflecting the qualified person’s name. The qualified requester must submit a properly completed Request for Confidentiality of Home Address (INV 32) through their employer to the DMV. The INV 32 must contain the driver license number and each vehicle, vessel, or OHV (newly purchased or transferred to) license plate that contains the qualified person’s name as the registered or legal owner. An INV 32 is required every time a qualified person’s name is added to or deleted from a registration record.  To obtain an INV 32, please contact: LADA, Human Resources

Still, none of this keeps your information confidential from people who work at the DMV so use your work address for your vehicle registration and driver’s license.

Confidential Voter Registration

Voter registration information is largely overlooked public record.  However, pursuant to Elections Code 2166.7, public safety officers are eligible for confidentiality in such records. Here are some tips to help you make the switch.

First, you can’t get the form online; you will have to call in. Second, due to voter fraud regulations, you can’t use your office address and will have to use your home or an alternative address. Finally, it’s important to remember that any person granted confidentiality shall be considered an absentee voter.

In theory, the registration lasts 2 years before you need to renew, but, in practice, the L.A. Registrar / Recorder County Clerk leaves you on indefinitely.

USPS

Remarkably, when you move and forward your mail, the postal service gives away your new address and sells your new address to data vendors. Whenever you fill out a change of address form with the United States Postal Service, the USPS adds your new details into a database of 160 million previous address changes over the past four years. The USPS has deals with data brokers to sell this data to anyone who pays, provided they have your old address.

There is no opt-out option on the USPS web site to avoid having your data sold to data vendors.  Your best option is not to forward your mail but to contact each company, magazine, etc. on your own, individually.

Finally, one of the simplest ways of preventing data vendors from obtaining your home address is to use a P.O.Box.

Internet Data Vendors and Govt. Code 6254.21

Govt. Code 6254.21 prohibits a person, business, or association from publicly posting display on the Internet the home address or telephone number of any elected or appointed official if that official has, either directly or through an agent, made a written demand to not disclose his or her home address or telephone number. A written demand must be complied with within 48 hours of delivery, it applies to that internet web site, subsidiary site, or any other internet web site maintained by the recipient of the written demand, and it prohibits the transfer of the information to any other person, business, or association through any other medium.

A written demand is effective for four years, regardless of whether or not the official’s term has expired prior to the end of the four-year period. Your ADDA is now able to make this demand on behalf of members.  If you wish to have the ADDA act as your agent, please fill out the Internet Privacy and Indemnity Agreement here.

Direct Marketing

You know when you order something from Restoration Hardware and almost immediately after you receive catalogs from a number of other companies that you’ve never purchased from? That is due to direct marketing. Vendors sell your private information. However, you’re not without recourse. The Direct Marketing Association (DMA) compiles lists of consumers who prefer not to receive direct-mail solicitations for other products and services. DMA members, including Experian, use the DMA list to remove names from their own mailing lists.  You can register online at: www.dmachoice.org. Or, you can write to: DMA Mail Preference Service, PO  Box 643, Carmel, NY 10512.  You will be removed from DMA-member lists for five years.

You also can have your name removed from telemarketing lists by adding your name to the National Do Not Call Registry. To register your name, visit www.donotcall.gov or call 1 888 382 1222.

The Internet and Social Media

The consequences of this informational medium seem obvious but it’s an area in which you need to talk to both your immediate and your extended family. Ways to stay safer: don’t put information about your valuables on the internet; don’t put information about your vacation on the internet until you are back home; and disable geotagging features that tell people where a photo was taken. Be aware of what your extended family is posting on their social media.  Do they identify you as their relative? Does they provide information about you that you would prefer to keep private?

Basic Home Security

Discuss with your immediate family about how to handle someone calling them or showing up at their door inquiring about you. Additionally, home precautions you should consider include: alarm systems, motion sensor lights, security cameras, locked back yard, dead bolts, guns, car alarms.

Michele Hanisee is Vice President of the Association of Deputy District Attorneys. She can be contacted at mhanisee@laadda.com. The view and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of ADDA, which represents nearly 1,000 Deputy District Attorneys.