A “Spring Cleaning” of Our State Prisons

By Eric Siddall

In January, we sent a Public Records Act (PRA) request to the California Department of Corrections and Rehabilitation (CDCR) requesting:

  • All emails, correspondence, or texts between the governor’s office and parole board members, staff, and attorneys regarding the implementation of Proposition 57, including discussion of any rules and regulations proposed from November 4, 2016, to the present;
  • All telephone logs, voicemail recordings, and notes between the governor’s office and parole board members, staff, and attorneys regarding the implementation of Proposition 57

Rather than siding with transparency, the CDCR denied our request and refused to provide the documents. We requested these items because the governor made it clear during the Prop 57 campaign he would be active in helping to develop the regulations if the initiative passed.  Given CDCR’s dismal history in creating release programs and properly evaluating parolees for release, the public certainly deserves to know how these regulations were to be developed.That history includes a 2011 audit finding CDCR failed to properly implement the Correctional Offender Management Profiling for Alternative Sanctions (COMPAS) software program that that was to evaluate inmates likely to be successfully rehabilitated and integrated into public life upon parole.  Similarly, an audit in 2008 found CCDR simply ignored state law in parole decisions, with supervisors often ordering the release of inmates without properly documenting the reasons and altering the reports of parole agents to justify those releases.

However, the regulations have been developed. They were released by CDCR this past week: Guidelines for revisions to sentences and credits. We had repeatedly blogged that violent inmates would be getting early releases thanks to Prop 57, a charge Governor Brown hotly disputed. Well, it turns out the new guidelines call for inmates serving sentences for violent crimes to receive a 5% increase in credits awarded for “good time behavior,” meaning those inmates will be released earlier than they would have been before Prop 57.

As we also pointed out, the list of crimes most people and common sense would consider “serious” and/or “violent” don’t fall within the extremely narrow definition of Prop 57.  “The enhanced credits of one month per year for participating in “self-help” programs will now apply to crimes, such as assault with a deadly weapon, battery with serious bodily injury, arson of forest land causing physical injury and many others. In short, even more violent inmates released to the streets earlier. In addition, a CDCR’s “emergency regulation” will classify as a “non-violent” offender an inmate currently in prison for a “violent” offense but who has completed serving time for that violent offense and is still serving time on other offenses.

Further, prosecutors and victims will only have 30 days to contest the parole release of the “non-violent” inmates who have completed their base sentence.   The opposition must be in writing and there is no anticipation that parole board hearings with attendance by prosecutors or victims will be allowed. That, of course, is in sharp contrast to Governor Brown’s promise during the campaign that he would work to address this lack of live participation by prosecutors or the victims.   Further, while inmates will be given the right to request review of a hearing officer’s parole decision, neither victims or prosecutors will be allowed that right.  Finally, unlike parole grants for inmates serving life with parole terms, there will be no review of any parole board decision by the governor.

The CDCR changes in parole eligibility are set to take effect April 12, 2107, if state regulators give approval, with final approval set for October 2017 after consideration of public comment. However, inmates will begin accruing early release credits while the public review is ongoing.

>As a result of these new rules, CDCR is expect to grant early release to at least 9,500 felons in the next four years, violent and serious offenders among them, with little opportunity for opposition by victims. As Senator Scott Wilk pointed out recently, “through a host of ‘reduce prison population at any cost’ measures, our governor and the legislature have already partnered to release nearly 50,000 criminals from our jails and prisons.”

The proposed new rules are yet another blow to victims of crime and the public. The only thing remaining is the inevitable spike in crime and subsequent denial by Prop 57 supporters that the early release of thousands of inmates led to that increase in crime.

Eric Siddall is Vice President of the Association of Los Angeles Deputy District Attorneys, the collective bargaining agent representing nearly 1,000 Deputy District Attorneys who work for the County of Los Angeles. 

Sensible and Needed Reforms to AB 109 and Prop 57

By Eric Siddall

Assemblyman Ian Calderon has proposed a sensible reform to fix some of the problems of AB109 and Proposition 57. This legislation came about when it was clear that the gang member who murdered Whittier Police Officer Keith Boyer was given repeated 10 day “flash incarcerations” for each of his five separate parole violations. Under the prior system, he could have spent a year in prison for just one violation.

AB 1408 implements three basic reforms. It requires county probation departments to seek parole revocations for a third violation. It requires consideration of an inmate’s entire criminal history by the parole board. Lastly, it increases information sharing between the state and the county regarding the criminal history.

AB 109 artificially deflated the recidivism rates. It did so by shifting parole responsibility for many felonies to county probation departments.  AB 109 also shortened parole violations by creating a new system of 10 day “flash incarcerations.” AB 1408 will help address these shortcomings.

In a recent blog we highlighted the violent history of the “Most Wanted” parolees being sought for parole violations by the LA County Probation Department. It certainly does not help public safety when repeated parole violations are dealt with by a slap on the wrist via a 10 day “flash incarceration.”

Assemblyman Calderon’s legislation is a sensible first step to advance public safety.  He noted this legislation was a product of intense discussion with law enforcement, and that it endeavored “to set some practical ground rules and enhance the tools available to law enforcement operating under these reforms.”

We noted in a previous blog the failure of the California Department of Corrections and Rehabilitation to publish offender information that had previously been available for years.   With the vast majority of parolees now supervised by county probation it is hard to assemble accurate information on parolee recidivism.  The state should certainly provide that information so the public can evaluate whether this attempt at “parole reform” has been effective, or simply a way to game statistics regarding recidivism rates.

The problems AB 109 has created can only be addressed via state legislation.  We applaud Assembly Calderon for taking the first step in that direction.

Eric Siddall is Vice President of the Association of Los Angeles Deputy District Attorneys, the collective bargaining agent representing nearly 1,000 Deputy District Attorneys who work for the County of Los Angeles. 

What Is the California Department of Corrections and Rehabilitation Hiding?

By Michele Hanisee

Trust us, they said. We know what’s good for you and the state of California.

That was the message hawked by Gov. Jerry Brown and the state Legislature when they pushed and passed a variety of initiatives that gutted the criminal justice system. They did so by weakening parole (AB 109), downgrading a host of crimes to misdemeanors (Prop. 47), and making dangerous felons eligible for release when they have served just a portion of their sentences (Prop. 57).

Governor Brown and his allies sold these laughably flawed programs by cynically invoking compassion, fiscal prudence and an obligation to open prison gates to comply with court orders.<

Crime began rising throughout the state shortly after the dismantling of our safety net began. There is plenty of anecdotal evidence that state voters should not have bought the snake oil from its peddlers.

But what we don’t have is critical, big-picture data from the California Department of Corrections and Rehabilitation (CDCR). Data, for example, on the rate at which felon parolees return to prison. Data on what crimes the prisoners committed. Data on the overall recidivism rate.<

The CDCR used to dutifully post the “Recidivism Rate Report“ which contained valuable information in a prominent place on its website. But in 2012 and 2013 – not long after AB 109 became law – it stopped. While not one major media outlet questioned this abrupt end of public information, the question everyone must ask is why? Would publication of the data in an easy to find place expose issues in prison realignment?

The CDCR may argue that while they have not published a report in the same format as they did prior to AB 109, that they report on prison population changes and current makeup in reports like the one titled, An update to the future of California Corrections. One would first have to find the report buried on an obscure page of their website. Then, one would have to carefully review the 57-page report to find on pages 27-29 the information that the CDCR used to post in an obvious location.   While other areas of the report contain additional information about the population, similar to the 2013 and earlier reports, one has to wonder why the CDCR stopped assembling the critical information in an easily accessible format, but decided instead to bury the information in various other publications.

We do know that the prison population did not include those whose supervision was transferred to County Probation Departments.   Convicted felons like Michael C. Mejia, the gang member with priors for robbery and grand theft auto, and the suspect in last month’s murder of Whittier Police Officer Keith Boyer. A beneficiary of AB 109, as documented by the Association for Los Angeles Deputy Sheriffs, “the killer had been on parole following his release from prison in April 2016, and in the next few months violated parole-five separate times in seven months-for possessing drugs and failing to comply with police officers.

But we don’t know what the larger data sets show about who is in prison, for what crimes, and who has been returned to prison on parole violations. The CDCR, which promises “A safer California through correctional excellence” no longer posts the raw data on their website, which raises questions.

When the Governor and Legislature ask state voters to blindly trust them because they know what’s best for us, the least they can do is require the CDCR to post information that allows us to judge their statements through the prison of hard, clear data-data they posted year after year until after AB 109 went into full effect.

>Michele Hanisee is President of the Association of Los Angeles Deputy District Attorneys, the collective bargaining agent representing nearly 1,000 Deputy District Attorneys who work for the County of Los Angeles. 

Statute of Limitations Must Govern State Bar Actions

By Michele Hanisee

Last week’s decision by the California State Bar to file disciplinary charges against former Los Angeles City Attorney Carmen Trutanich based on conduct that occurred 31 years ago, should cause unease to every attorney in the state. This action of the State Bar, which acts as the administrative arm of the California Supreme Court, cannot be squared with that court’s long-held beliefs on timely filing of actions in both criminal and civil cases.

An integral part of the law is the concept of a statute of limitations. In Wood v. Elling Corp (1977) the California Supreme Court reiterated the broad policy behind statutes of limitations: “Statutes of limitation … are designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared. The theory is that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and the right to be free of stale claims in time comes to prevail over the right to prosecute them.” In a subsequent opinion, Addison v. State of California (1978) the court reiterated the policy reasons for statutes of limitation, writing that they “serve a distinct public purpose, preventing the assertion of demands which, through the unexcused lapse of time, have been rendered difficult or impossible to defend.”

California State Bar Rule 5.21 (A) states that a disciplinary proceeding based solely upon a complainant’s allegation of misconduct must begin within five years of the alleged violation. However, Rule 5.21(G) states the five-year rule does not apply if the source was “independent” and not based on a complaint. In other words, if a damaged party complains, there is a statute of limitations. If the State Bar chooses to act on its own, in the absence of a complaint from an aggrieved party, they can go as far back in time as they please.

In the Trutanich case, the “independent source” is a Federal District Court habeas ruling issued in 2016, thirty years after the trial in which the alleged misconduct occurred. The bar alleges that Mr. Trutanich knew or was “grossly negligent in not knowing” that two witnesses had testified falsely, and that Mr. Trutanich withheld Brady material from the defense. That ruling occurred 16 years after the California Supreme Court denied Barry Williams’ habeas petition which contained similar allegations of prosecutorial misconduct.

The bar complaint vividly illustrates the ills the California Supreme Court warned of in its decisions on statutes of limitation. In the Trutanich case, the two witnesses the court ruled had testified falsely were deceased by the time of the habeas hearing. The handful of witnesses still alive, including Mr. Trutanich, all testified they had little memory of the events in the case which happened long ago. With minimal testimony provided by actual witnesses to the events at issue, the federal court’s decision was based on inferences from fragments of documentary evidence and testimony on patterns and practices of police agencies.

Similarly concerning is the State Bar’s assertion that discipline should be imposed for an alleged violation of Brady v. Maryland, which is a policy designed to protect the due process rights of persons facing a loss of liberty at the hands of the state. For that reason, the Brady decision and its progeny have held that even an inadvertent or unknowing failure by a prosecutor to turn over material evidence violates due process. However, in this instance, the State Bar is not seeking to protect the due process rights of an accused who is being threatened with imprisonment by the state but regulating the conduct of attorneys. This action of the State Bar is essentially asserting the State Bar can seek to revoke a prosecutor’s bar license for failure to turn over evidence that was completely unknown to that prosecutor.

Without delving too far into the merits of the factual allegations, the evidence recited by the District Court is that, “evidence obtained from the prosecution’s file indicated that the prosecution might have been aware of [the witness’s] identity, address and her telephone number.” [Emphasis added.] An attorney from the ACLU told the court in a memo that they did not received a copy of the page with the witness’s address because it was written on the back of one of the pages of the reports (the inference being the back of the pages were not copied). Mr. Trutanich testified at the hearing before the District Court that he was unable to locate the witness to serve her with a subpoena but that a copy of the subpoena listing the witness’ last known address was given to the defense.

It should be troubling to everyone, whether a supporter or Mr. Trutanich or not, that The State Bar of California has elected to bring charges 31 years after the fact, without any claim in the charges of actual knowledge by the attorney of the misdeeds that underlie the alleged misconduct. Even proposed Rule of Professional Conduct 3.8(d), which would govern prosecutorial discovery and Brady requirements, requires some scienter for there to be misconduct.

However, even if true, should a Brady violation be considered an offense exempt from any statute of limitations? The state legislature certainly does not think so; in 2015 the legislature enacted amendments to Penal Code section 141 which make it a felony crime for a prosecutor to intentionally withhold Brady evidence. Yet, the legislature did not deem it necessary to exempt that crime from the usual statute of limitations.

Finally, while the state bar might claim that it instituted proceedings only after the federal court ruling, that excuse is insufficient given that the allegations of the misconduct had been publicly raised decades before. For example, in 2000, the same claims regarding the detective and informant were raised in state habeas proceeding. After extensive discussion, those claims were rejected by the California Supreme Court in a published decision. Even if one disagrees with the Supreme Court’s conclusion and finds the federal court conclusion about the same conduct more credible, the important point is that the allegations of misconduct were in the public arena and available for the state bar to pursue at a time when witnesses were alive and memories fresher. Instead, the state bar chose to sit on its “independent source powers,” only deciding to pursue the claims when a different conclusion on the allegations of misconduct was rendered decades later.

Courts and legislatures have long held that there are very few instances where a statute of limitations should not apply to conduct, be that conduct negligent or willful. The State Bar’s assertion of a lifetime exemption from the statute of limitations for attorney misconduct, simply because the bar initiated the proceedings, is an abuse of its powers. In accordance with its stated policy reasons for statutes of limitation for crimes, the Supreme Court should place limitations on the time frame in which its administrative disciplinary arm can bring charges of attorney misconduct.

Michele Hanisee is President of the Association of Los Angeles Deputy District Attorneys, the collective bargaining agent representing nearly 1,000 Deputy District Attorneys who work for the County of Los Angeles.

The LA County “Most Wanted List” and AB 109

By Michele Hanisee

Controversy swirls around AB 109, with the recent murder of Whittier Officer Keith Boyer by a parolee whose multiple parole violations resulted in nothing more than 10-day “flash incarcerations” being the most recent and tragic example of AB 109’s failures.  No definitive study has been done on the fallout from AB 109, but anecdotal evidence abounds to rebut the defenders of AB 109 who vehemently insist that its provisions have not made our communities more dangerous.

One repository of evidence of how AB 109 has made our streets less safe is found in the description of 120 persons currently on the “L.A.’s Most Wanted” list of the Los Angeles County Probation website, with whereabouts unknown.  For each wanted person there is a recitation of their criminal history, which unquestionably makes them dangerous.  Each listing then helpfully answers the next logical question of why county probation is supervising such a dangerous person: “Under the Governor’s Public Safety Realignment Act of 2011, better known as Assembly Bill 109 (AB 109) the responsibility of lower-level offenders was shifted from the State to Los Angeles County,” with the wanted person “qualified to be released to the supervision of probation, under AB 109, because his current commitment offense…was defined as non-serious and nonviolent under the California penal code.”

The laundry list of prior crimes these wanted parolees had been convicted of establishes their dangerousness.  They include attempted murder, robbery, lewd and lascivious acts with a minor, oral copulation, sodomy, elder abuse, battery with serious bodily injury, terrorist threats, possession of loaded firearms, and burglary. However, because their most recent stint in prison was for, as the probation department notes, a “non-serious and nonviolent” offense they are supervised by county probation rather than state parole.  Of course, if eventually caught these dangerous parolees will face a maximum of 180 days custody[MH1]  in county jail, not state prison.

So these dangerous convicted felons have disappeared into our communities and are refusing to report to probation. Would it be cynical to suspect that it is because they are up to no good and perhaps committing more crimes at the expense of L.A. County residents? Of course not. It is a more convenient truth to believe that AB 109 hasn’t made our community more dangerous.

Michele Hanisee is President of the Association of Los Angeles Deputy District Attorneys, the collective bargaining agent representing nearly 1,000 Deputy District Attorneys who work for the County of Los Angeles. 

The Criminal Justice Shell Game

By Eric Siddall

When criminal justice experiments are not supported by structural reform, the result is more senseless murders, like Whittier Police Officer Keith Boyer. It is time for the state to stop its cheap attempts at fixes to the criminal justice system, and implement meaningful reform. AB 109, Prop 47, and Prop 57 have been failures. All were hastily crafted social experiments passed without input from law enforcement or victims’ rights organizations. They were passed because the state was being cheap. Sacramento has been derelict in its duty to the People of the State of California.

Here is the nasty little secret of these three experiments. Sacramento was tired of paying the bill for public safety, so they decided to pass the buck to the counties. AB 109, moved low level offenders from state prison, which the state pays for, to county jails, which the county pays for.

It also curtailed the power of parole agents (paid by the state) to monitor and punish parolees. Instead it shifted the responsibility to probation. Guess who pays for probation? The county. Guess who has next to no expertise in dealing with harden criminals? Probation.

Here is what we lost. Parole agents specialized in dealing with hardened criminals who had been sent to prison. If a parolee was found in violation, parole could send him back to prison for a year. Parole agents were no joke. They kept tight control over their wards. Today, thanks to “reforms”, a parole agent can only punish a parolee with 10 days in the county jail.<

Prop 47 reduced many crimes from felonies to misdemeanors. Misdemeanor offenders are sent to county jail. Again, the county pays the bill. Notice the trend.

Prop 57 gives the parole board (different from parole agents) unfettered power to release state prisoners. Interestingly, this reform did not address the issue at the county level. Again, the net result is less expense for the state.

So, while it is true that these reforms on their own did not cause Officer Keith Boyer to get murdered by Mejia, it is irresponsible to ignore the fact that the state has, over the last decade, wiped its hands of its public safety obligations and shifted the burden of monitoring harden criminals to probation-an organization not equipped to deal with the Mejia’s of the world. Did these reforms on their own allow Mejia to murder Officer Boyer? No. But the state exiting the public safety business did contribute!

Eric Siddall is Vice President of the Association of Los Angeles Deputy District Attorneys, the collective bargaining agent representing nearly 1,000 Deputy District Attorneys who work for the County of Los Angeles. 

Parole board once again wants to free a dangerous criminal

By Eric Siddall

The state parole board continues to demonstrate that it cannot be trusted with the public’s safety. We are especially concerned because this non-elected body now has unfettered power to release felons thanks to Prop 57.

Last week, parole recommended that Charles Manson follower Bruce Davis be granted freedom. While Davis is not one of the better-known Manson thugs, his involvement in two 1969 murders was no less brutal.

Davis admitted to attacking stuntman Donald “Shorty” Shea with a knife and holding musician Gary Hinman at gunpoint while Manson sliced his face. Hinman was ultimately tortured for three days before being murdered.

This is certainly not the first time the board has unconscionably and irresponsibly proposed to free brutal criminals. Yet, under Prop. 57, it will have the ultimate power to decide which felons get released.

Prop. 57-falsely marketed as a crime stopper-makes felons eligible for early release from state prison. Sentences handed down by judges, statutory punishments determined by the Legislature, and plea agreements between prosecutors and defendants are now irrelevant. The release decision rests solely with the parole board.

Regrettably, the board has repeatedly shown it is incapable of shouldering this immense responsibility.

In addition to recommending parole for Davis, board panels recently proposed to free Manson family killer Leslie Van Houten and cop-killer Voltaire Williams, who played a central role in the 1985 murder of LAPD Detective Thomas Williams (no relation).

Gov. Brown rejected the panel’s parole recommendation for Van Houten, and he rejected an earlier parole recommendation for Davis in 2016. We hope he does so again.

Parole denial for Davis would be a small victory for public safety. Prop. 57 will unleash a torrent of offenders, many of them dangerous and violent, into our communities. Unlike murderers like Davis, the governor will have little authority to intervene with these felons. It’s a safe bet that it won’t take long for rising crime statistics to expose the tragic folly of this awful, radical experiment.

Eric Siddall is Vice President of the Association of Los Angeles Deputy District Attorneys, the collective bargaining agent representing nearly 1,000 Deputy District Attorneys who work for the County of Los Angeles.

Why Local Law Enforcement Should Not Be Immigration Agents

By Eric Siddall

A prosecutor’s job is to seek justice for all people who are victims of crime, whatever their legal status in this country. To accomplish this goal, there needs to be cooperation from victims and witnesses, willing to both initially tell the police what they observed and then willing to testify in court. However, people will not cooperate when they believe there is a personal downside for aiding law enforcement.  Sometimes it is because there is a threat of retaliation from a criminal or their associates. In the cases of those who are in the country in violation of immigration laws, it may be the fear of deportation.

In 1979, in recognition of this reality, LAPD adopted, Special Order 40, to “provide courteous and professional service to any person in Los Angeles while taking positive enforcement action against all individuals who commit criminal offenses, whether they are citizens, permanent legal residents or undocumented aliens…. Police services will be readily available to all persons, including the undocumented alien, to ensure a safe and tranquil environment.”

This policy of not using local and state law enforcement to question people about immigration status is not about political correctness. It is about the effective administration of justice. There is no question that we should cooperate with the deportation of criminals once they have completed their sentence here in the United States.  However, if undocumented residents feel they cannot go to the police without fear of deportation, then they will not report crime. This part of our community will become a natural target for criminal street gangs and human traffickers, confident that those they prey on will stay silent for fear that cooperation will be a quick ticket to deportation.

Those of us charged with enforcing the laws of California should be worried about the rhetoric that is now coming from Washington.  The specter of using federal power to compel local law enforcement to act as agents of the federal government will hamper the ability to prosecute criminals and provide justice for crime victims. It is heartening to see that our state leaders, including Governor Brown, and local leaders, such as Mayor Garcetti, understand the need to stand against this misguided policy. They are defending a policy that has served California well for the past 38 years.

We will only be safe when all members of our community feel invested and know they can trust law enforcement. This is because cases are built on information gathered on the street. They are built upon witnesses reporting to officers. They are built upon gaining cooperation from people who have legitimate fear of gang retaliation.  Cases are won and justice is served when a witness-because of trust and faith in law enforcement-steps into that witness box and, in probably one of the more courageous and selfless acts, explains to a jury what happened on the night a stranger was murder by a ruthless gang member.

Only if local law enforcement remains focused on our jobs-enforcing state and local laws-can we ensure we will have a community ready and willing to step forward and help us make, and prove our cases.

Eric Siddall is Vice President of the Association of Los Angeles Deputy District Attorneys, the collective bargaining agent representing nearly 1,000 Deputy District Attorneys who work for the County of Los Angeles. 

A Bully’s Bill of Rights

By Eric Siddall

Bullying, sexual assaults, and gun violence are recognized problems in our schools. Not according to Assemblywoman Shirley Weber who introduced AB 163. This latest piece of legislation, initially proposed by the ACLU in a 2016 report, seeks to protect suspects of these crimes and prohibit police from investigating or arresting the perpetrators of these crimes.

AB 163 prohibits law enforcement officers from arresting students for “low-level misconduct” and require that school counselor and not police handle crimes such as bullying, harassment, and other “nonviolent incidents.”  The ability of officers to interview any student on campus during school hours, be they suspect or victim, would be prohibited “absent a real and immediate physical threat to pupils, teachers, or public safety.”  A peace officer seeking to interview a student-suspect or victim during school hours could only do so after getting the consent of the school principal and a parent and providing Miranda warnings before questioning.  If the officer wanted to arrest a student on campus, they would have to notify a parent before the arrest, provide the principal reason for both the arrest and need to make the arrest at school, and possess an arrest warrant.

The restrictions above are clearly intended to severely hamper the ability of law enforcement to conduct any law enforcement activities on school grounds.  This restrictions are not based upon the US or California constitutions, because they go way beyond the protections afford under both the 4th and 5th amendments.

For example, the 4th amendment only requires probable cause for an arrest, not the arrest warrant requirement in AB 163.  Likewise, the 5th Amendment only requires a recitation of Miranda rights when there is a custodial interrogation, not during a consensual interview or during a detention.

Therefore, notwithstanding the restrictions made by AB 163, violations of this law would still subject the individuals to criminal prosecution.

This is not the first time we have had concerns about Assemblymember Weber’s legislation – see our blog entitled Shirley You Jest – Stanford Sexual Assault. There are other troubling sections of the bill demonstrating a lack of understanding of the criminal justice system, and frankly, a lack of common sense.   For example, the bill treats all students, be they victim or suspect, alike. Thus, if Jane Doe tells a teacher (a mandatory reporter) of a sexual assault, beating, or other crime committed against her the previous week by her parents, when police are called the officer would be prohibited from interviewing the student at the school absent parent consent.   Similarly, if there were a rash of thefts at school with students as victims, a not uncommon occurrence, school staff would be prohibited from calling a police officer to investigate that crime.  Should a student or parent independently report the theft, officers would be prohibited from responding to school-where all the victims were located and interviewing the victims unless the time-consuming process of contacting a parent of each student victim was contacted and consented to the interview.

A similar lack of common sense is the prohibition of an arrest on school grounds unless a warrant is obtained and a parent notified.  It is not uncommon for officers to be unable to locate juvenile suspects in the community, but instead find them at school.  Thus, if Johnny Juvenile rapes an acquaintance the week prior and his parents hide him from police, upon learning Johnny was at school officers would have to first go through the time-consuming process of getting an arrest warrant and then notify Johnny’s parents prior to trying to arrest Johnny.

What is equally disturbing is the vague language replete in AB 163. The bill states police can only be called when there is a “real and immediate physical threat to pupils, teachers, or public or when required by existing law.”  What constitutes a “real and immediate physical threat” is a phrase that would give hours of delight to those also interested in knowing how many angels can dance on the tip of a needle.

Similarly, AB 163 prohibits arrests for “low-level misconduct,” a term not found in the Penal Code.  However, what are some of the crimes the drafters of AB 163-the ACLU-consider “low-level misconduct?”  From their 2016 report, here are a choice few: battery against school staff; battery on school property; physical altercations that do not involve a weapon; verbal harassment; possession of a small pen knife; pepper spray or toy gun unless being brandished as a weapon; and vandalism.

Putting aside the notion that beating a teacher or another student is simply is “low-level misconduct,” the Penal Code is in disagreement as well.  Possession of a penknife that has a blade longer than 2 ½ inches, anda “toy gun” capable of discharging a metallic pellet at a school is a felony, whether the item was brandished or not.  Likewise, it is a felony for a minor under 16 to possess pepper spray, and vandalism causing damage over $400 is also a felony.

As mentioned above, this bill is the product of the ACLU report which was a mixture of “facts,” incomplete, anecdotal accounts, and statistical projection. With overwrought language, it decried law enforcement presence on campus as feeding a “school to prison pipeline” and made recommendations that have now become AB 163.  A mixture of the “facts” in the report have been questioned. The LAUSD Police Chief called out the report’s inaccuracies when recounting the agencies arrest rate of African American students, searches of students, and police staffing on school campuses.  Likewise, an anecdote about a Taser use by a police officer at a San Diego area, high school failed to include the facts that the officer tasered the students only after the three students brutally beat the officer into brief unconsciousness, or that all three students later admitted their guiltto criminal charges stemming from the attack.

AB 163 begins with the incomplete and head scratching rationale in its “findings and declarations” for the Legislature. Using the theory of “disparate impact,” AB 163 cites differences in the arrest and suspension rates for of minority student but ignores the behavior prompting those arrests or suspensions.    However, a 2014 study in the Journal of Criminal Justice concluded that “the racial gap in suspensions was completely accounted for by a measure of the prior problem behavior of the student – a finding never before reported in the literature.”  The study went on to note that “great liberties was taken in linking racial differences in suspensions to the racial discrimination” and cautioned that “it is entirely possible that the body of evidence and the conclusions drawn from the evidence on racial differences in school suspensions represents not the sum total of rigorous scientific analysis but the process of confirmation bias.

A similar head-scratcher in AB 163 is a “finding” that a law enforcement presence on campus “increases disorder” because it makes students fearful of staff and police.  It’s not the thousands of weapons on campus in Los Angeles and across the state recovered each year, the violent brawls at schools, the necessity to provide “safe passage” to get students to school or school bullying and fights aren’t what make students fearful-it’s law enforcement on campus.

With dubious rhetoric and faulty data behind it, a grab bag of requirements that are at odds with settled constitutional law, and the limitations on law enforcement to conduct and investigate criminal activity and make arrests, AB 163 makes our staff and students at our school less safe.  A careful dissection of those factors by the state legislature should lead to its defeat.

Eric Siddall is Vice President of the Association of Los Angeles Deputy District Attorneys, the collective bargaining agent representing nearly 1,000 Deputy District Attorneys who work for the County of Los Angeles.

Death Penalty Opponents Still Trying to Keep Convicted Murderers Alive

By Michele Hanisee

California voters in November approved sweeping reforms to preserve and fix the state’s broken death penalty system by passing Proposition 66 and rejecting a proposition that would have ended the death penalty in California.

However, within hours of passage, death penalty opponents filed a lawsuit to challenge the initiative, seeking to have it overturned in whole or in part, and the Supreme Court stayed the “implementation of all provisions of Proposition 66” and agreed to hear that case.

The ADDA, along with ten other Deputy District Attorney Associations, has filed an Amicus Curiae (Friend of the Court) response that painstakingly takes apart the arguments against Proposition 66. The lawsuit challenging Prop. 66 brought by former Attorney General John Van de Kamp and Ron Briggs is a frivolous challenge based on patently false claims. The Supreme Court will hopefully see the plaintiff’s challenge for what it is-a desperate last ditch attempt by the losing side in a political campaign to accomplish in court what it failed to do before the voter’s campaign.

Another temporary roadblock was created by the state’s Office of Administrative Law (OAL), which rejected a new lethal injection protocol that the California Department of Corrections and Rehabilitation (CDCR) proposed.

The new protocol replaced the old three-drug cocktail with a single, 7.5-gram dose of one of four barbiturates. The CDCR proposed the new protocol to address legal challenges that the state’s existing execution method was unconstitutionally cruel and unusual punishment. The state has not executed a criminal since 2006.

However, the OAL took issue with some of the protocol’s provisions in a 25-page decision issued on Dec. 28. Among other things, the office questioned why a 7.5-gram dose would be administered when the CDCR acknowledged 5 grams would be sufficiently lethal; why there would be a $50 cost limit on inmates’ last meals; and why inmates would have the option of taking a sedative before the execution begins.

The CDCR has four months to address those issues and resubmit the protocol to the OAL. However, as the list of objections above demonstrates, death penalty opponents continue to invent excuses to block the resumption of executions. It is noteworthy that last year California passed legislation that allowed the use of drugs for “assisted suicide.” Even if the CDCR proposed to use the same drugs/dosage California now allows for “assisted suicide,” you can be sure death penalty opponents would still object.

One thing these two instances make abundantly clear; despite the will of the state’s voters, now expressed in multiple elections in recent years, those opposed to executions in California will do everything they can to keep duly convicted murderers alive.

Michele Hanisee is President of the Association of Los Angeles Deputy District Attorneys, the collective bargaining agent representing nearly 1,000 Deputy District Attorneys who work for the County of Los Angeles.