Three Strikes and They’re Out

By ADDA Board of Directors

Unable to secure funding for paid initiative circulators and lacking public support for their measures, Chuck Reed and Carl DeMaio announced January 18, 2015, they would not seek to put either of their proposed pension initiatives on the 2016 ballot.

Instead, the less than dynamic duo of ex-politicians announced a list of events that needed to come true for one of their pension measures might prevail;  that the California economy enter a recession, that the Supreme Court rule against public unions in the pending Friedrichs case and that voter turnout would be low in the 2018 election-which they claimed would be their next attempt to put a measure on the ballot.

This is the third time Reed has announced a statewide pension initiative, only to fold for lack of public support and funding to pay signature gatherers. There is no groundswell of voters willing to circulate the petitions on their own time.  Clearly this initiative was not the “bulletproof” measure the duo loudly proclaimed but instead adds to their list of failures over the past several years.

Prior pension initiatives they proposed by the Reed and DeMaio were never circulated for the ballot because they crumbled under the light of public scrutiny.  One of Reed’s proposed and dropped initiatives received an Attorney General summary Reed claimed was misleading — but a Judge ruled the summary was accurate.  The duo abandoned another initiative even staunch pension critics pensions labeled as “false” Reed and DeMaio’s claims about the initiative’s scope.

Of course, 2015 was a terrible year for Reed, DeMaio, and the pension measure Reed helped pass in San Jose and DeMaio in San Diego.  In the summer of 2015, the San Jose City Council voted to rescind the Reed measure.  And late last year the  Public Employment Relations Board -a state agency—ruled DeMaio’s San Diego measure was improperly placed on the ballot and must be rescinded (that matter will now be on appeal).

Over the next two years, Reed and DeMaio will desperately hope for bad news to give their proposed pension measures and extinguished political careers life.  But, should they resurface, in the words of Dave Low, Chairman of Californians for Retirement Security “They can be assured that any scheme they cook up for 2018 will meet the same fate of their previous efforts because we will fight it with our full arsenal.”

For factual information, please read our five previous blogs that detail the pension issue and the financial disaster that Chuck Reed and Carl DeMaio want to create in California: (1) One Pension Scheme Shelved – New Ballot Measure Planned, (2) Attorney General: Reed initiative eliminates constitutional protections for vested pension benefits,  (3)The destruction Chuck Reed wants to bring to California, (4) Attention Shoppers: Don’t Sign that Misleading Pension Petition!, (5) Your Pension is Under Attack and (6) Fuzzy Math Continues to Drive Public Pension Hysteria.

The Assault on Safety Continues: Eliminating Bail is the Latest Target

By Marc Debbaudt

And now they come after bail.

Those opposed to incarceration as the primary tool which ensures public safety have been on a roll the last few years.  First came “realignment,” which shifted convicted felons from state prison to local jails. Then came “split sentences,” which allowed felons to serve a portion of their prison sentence in local custody followed by release to the community. Most recently, Proposition 47 reduced a slew of property and theft crimes to misdemeanors, thereby removing incarceration as a likely option for individuals convicted of those crimes. And of course we have the new laws that seek to prevent the deportation of criminal immigrants.

As detailed in an Associated Press article by Paul Elias, the latest target of the anti-incarceration crowd is the cash bail system. Lawsuits recently filed in Northern California challenge the cash bail system and seek its elimination. The claim is that cash bail is unfair, as those accused of felonies but lacking financial means are unfairly kept in custody. A person who fails to appear in court, whether released on bail or not, faces additional criminal penalties for their failure to appear.  However, experience has taught that the threat of additional punishment alone is not sufficient incentive to return to court for many.

In California, the Penal Code mandates that county judges set a bail schedule for felony offenses. The schedule dictates the bail amount for those arrested and booked into jail prior to their arraignment.  At the first court appearance, which occurs within 72 hours of arrest, the court may change the bail amount required.  Factors considered in setting bail include protection of the public, the seriousness of the offense charged, the previous criminal record of the defendant and the probability of their appearing at trial or at a hearing. Further, by presenting new facts,within five days, the defendant may have a review of the bail set at arraignment.

However, not everyone is required to post bail. The rich and the poor can be released on the discretion of the arresting agency or the judge without posting bond. Some criminals are cited and released at the time of the arrest or after booking without bail being set or posted. Some are released At arraignment on their own recognizance [OR] which is a mere promise to return made to the Judge when the Judge believes the person is a good risk.

Bail is usually met by posting cash, or by using a bail bond service, which posts the bail amount but charges a fee that is a percentage of the bail amount.  Those who cannot post the bail amount remain in custody while waiting for their case to be concluded on an expedited timeframe.

While those challenging the cash bail system attack its constitutionality, cash bail is specifically contemplated by the Constitution.  The 8th Amendment states that “excessive bail ought not to be required.” The United States Supreme Court has decided that this phrase means that bail cannot be higher “than is reasonably calculated” to ensure the defendant’s appearance at trial. In other words, the amount of bail is determined to make sure that the person who is released shows up to court. The test is one of reasonableness. The Constitution and the Supreme Court both recognize the simple fact that a person who stands to lose financial assets is more likely to return to court than one released without a bail requirement. This time worn procedure has demonstrated that cash incentivizes a person’s return to court. Who is more likely to return to court, those with their hard earned money on the line, or those who have no risk if they abscond?

The inescapable reality of life, that some have more means than others, and that wealth has advantages over poverty, has never risen to the point where it constitutes a violation of our Constitution. Is wealth unfair? There is no mandate in the Constitution that all citizens must have equal financial status, or must enjoy the same opportunities that can be obtained through their financial abilities.  Removing a long standing time-tested element of the justice system that ensures public safety and the appearance of defendants for a misguided notion of “fairness” is foolhardy.  Is arrest and release fair to the next victim of the defendant?

The recent increase in crime following the passage of Prop 47 and various other criminal justice “reforms” is scary enough.  It would be a horrible mistake if our Legislature decides that we should let loose defendants before trial, and remove an effective way to ensure their return to court to face charges, for a misguided notion that the bail system is unfair. It is time for the social engineers to stop making our streets unsafe with one bad experiment with your safety after another.

Marc Debbaudt is President of the Association of Los Angeles Deputy District Attorneys.  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 Los Angeles Deputy District Attorneys.

The Assault on Safety Continues: Eliminating Bail is the Latest Target

By Marc Debbaudt

And now they come after bail.

Those opposed to incarceration as the primary tool which ensures public safety have been on a roll the last few years.  First came “realignment,” which shifted convicted felons from state prison to local jails. Then came “split sentences,” which allowed felons to serve a portion of their prison sentence in local custody followed by release to the community. Most recently, Proposition 47 reduced a slew of property and theft crimes to misdemeanors, thereby removing incarceration as a likely option for individuals convicted of those crimes. And of course we have the new laws that seek to prevent the deportation of criminal immigrants.

As detailed in an Associated Press article by Paul Elias, the latest target of the anti-incarceration crowd is the cash bail system. Lawsuits recently filed in Northern California challenge the cash bail system and seek its elimination. The claim is that cash bail is unfair, as those accused of felonies but lacking financial means are unfairly kept in custody. A person who fails to appear in court, whether released on bail or not, faces additional criminal penalties for their failure to appear.  However, experience has taught that the threat of additional punishment alone is not sufficient incentive to return to court for many.

In California, the Penal Code mandates that county judges set a bail schedule for felony offenses. The schedule dictates the bail amount for those arrested and booked into jail prior to their arraignment.  At the first court appearance, which occurs within 72 hours of arrest, the court may change the bail amount required.  Factors considered in setting bail include protection of the public, the seriousness of the offense charged, the previous criminal record of the defendant and the probability of their appearing at trial or at a hearing. Further, by presenting new facts, within five days, the defendant may have a review of the bail set at arraignment.

However, not everyone is required to post bail. The rich and the poor can be released on the discretion of the arresting agency or the judge without posting bond. Some criminals are cited and released at the time of the arrest or after booking without bail being set or posted. Some are released At arraignment on their own recognizance [OR] which is a mere promise to return made to the Judge when the Judge believes the person is a good risk.

Bail is usually met by posting cash, or by using a bail bond service, which posts the bail amount but charges a fee that is a percentage of the bail amount.  Those who cannot post the bail amount remain in custody while waiting for their case to be concluded on an expedited timeframe.

While those challenging the cash bail system attack its constitutionality, cash bail is specifically contemplated by the Constitution.  The 8th Amendment states that “excessive bail ought not to be required.” The  United States Supreme Court has decided that this phrase means that bail cannot be higher “than is reasonably calculated” to ensure the defendant’s appearance at trial. In other words, the amount of bail is determined to make sure that the person who is released shows up to court. The test is one of reasonableness. The Constitution and the Supreme Court both recognize the simple fact that a person who stands to lose financial assets is more likely to return to court than one released without a bail requirement. This time worn procedure has demonstrated that cash incentivizes a person’s return to court. Who is more likely to return to court, those with their hard earned money on the line, or those who have no risk if they abscond?

The inescapable reality of life, that some have more means than others, and that wealth has advantages over poverty, has never risen to the point where it constitutes a violation of our Constitution. Is wealth unfair? There is no mandate in the Constitution that all citizens must have equal financial status, or must enjoy the same opportunities that can be obtained through their financial abilities.  Removing a long standing time-tested element of the justice system that ensures public safety and the appearance of defendants for a misguided notion of “fairness” is foolhardy.  Is arrest and release fair to the next victim of the defendant?

The recent increase in crime following the passage of Prop 47 and various other criminal justice “reforms” is scary enough.  It would be a horrible mistake if our Legislature decides that we should let loose defendants before trial, and remove an effective way to ensure their return to court to face charges, for a misguided notion that the bail system is unfair. It is time for the social engineers to stop making our streets unsafe with one bad experiment with your safety after another.

Marc Debbaudt is President of the Association of Los Angeles Deputy District Attorneys. 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 Los Angeles Deputy District Attorneys

The “Ammo Police” is not the answer to criminal use of firearms

By Michele Hanisee

California Lt. Governor Gavin Newsom has proposed the California Safety for All Act; which will appear on the ballot in 2016.  The initiative proposes to solve the problem of criminals using guns against law abiding citizens by sharply restricting the ability of the law abiding citizens to acquire ammunition.  Cleverly named “Safety for All,” the initiative seems designed to raise Newsom’s public profile, because in reality it will do nothing to prevent mass shootings in this state nor will it have any positive effects on the safety of California residents.

The proposed new law is one of a handful of initiatives which aim not only to make it more difficult to purchase and own a gun in the state of California, but also to make it more difficult to purchase and sell ammunition.  However, since ammunition will still be legal to possess (albeit more difficult to acquire) the measure does nothing to stop criminals who commit murder — which, of course, is already illegal.  It will only affect the law abiding citizens.

First the good, because the initiative is not completely without merit.  I think we can all agree that felons should not work in gun stores.  The initiative makes the theft of any firearm a felony. (Ironically, it was Newsom’s disastrous Initiative, Proposition 47, which reduced the theft of guns valued under $900 to a misdemeanor.)  It requires that gun owners report gun thefts.  It criminalizes straw purchases like the one that put two rifles in the hands of San Bernardino killer, Syed Farook.

However, other portions of this Act will have a DETRIMENTAL impact on law-abiding gun owners.  Among the myriad of changes to state law, the measure would:

  • Instituting a total, confiscatory ban on the possession of “large-capacity” magazines with a greater than 10 round capacity, regardless of when you purchased them, even legally-owned “grandfathered” magazines.  Current legal magazine owners will be forced to turn them in, have them destroyed or sell them to a dealer;
  • Add severe and expensive new restrictions on ammunition purchases, including a mandatory DOJ permit for anyone who wants to buy ammunition, a ban on private ammunition sales, and a gun owner database of ammunition purchasers.  This “certificate” would take up to a month to obtain, would cost up to $50.00 and would have to be renewed every two years. Names of those who have a certificate would appear on a database of certified ammunition purchasers;
  • Require all dealers in California to obtain an “ammunition vendors license” to sell ammunition;
  • Prohibit ammunition purchased at a firing range from being removed from the firing range;
  • Ban the private transfer of ammunition and ban the private importation of ammunition;
  • Ban the private purchase and importation of ammunition from out-of-state retailers;
  • Require gun stores to post a lengthy notice in letters one inch high, thus turning the walls of gun stores into legal wallpaper.

The Act bizarrely defines “ammunition” for purposes of these restrictions, as including things that are clearly NOT ammunition such as magazines, clips, speed loaders and autoloaders.  Will I need a permit for my Uplula?

These changes to state law, if they are even legal, would over burden law enforcement while doing nothing to stop those who use guns to commit crimes.

What does Newsom propose to do, for example, to confiscate magazines that hold more than 10 rounds from the millions of Californians who do not voluntarily turn them in?  The large magazine capacity initiative will criminalize every Californian should they possess magazines carrying over 10 rounds by making it a misdemeanor crime.  This crime would be punishable by up to 364 days in jail and a $100 fine per magazine regardless of when the magazine was obtained!  Californians who have legally purchased and possessed standard capacity magazines (usually 15 rounds) for decades will now be criminals and subject to lengthy jail sentences even though they have never used those magazines in any crime and possess those magazines in their homes and business for self-defense purposes.  California has already seen gun owners in Los Angeles in 2015 and Sunnyvale in 2013 ignore a similar 10 round magazine ban; not a single magazine was turned in by the law’s deadline.

Will Newsom create a new “ammunition police” to arrest everybody who lends ammunition to a friend or who takes home leftover ammunition purchased while at a range?  Will police officers be required to inspect the ammunition of people leaving a range to try to determine what was purchased at the range and what was purchased at a gun store?  Are we going to establish border checkpoints between neighboring states, searching every inch of cars and trucks entering California to ensure that no ammunition is being brought into the state?

It is bad public policy to enact laws which the vast majority of Californians will simply, consciously, ignore.  And, it is worse public policy to enact measures which will not accomplish the goals they claim.

After the recent terrorist attack in San Bernardino, there are other issues with this proposed new law.

  • The issue of public safety in active shooter and domestic terrorism scenarios not being properly addressed and the inability of law-abiding persons to be able to step in and help combat terrorism.
  • The issues of fairness for those law-abiding individuals whom have been in lawful possession of high-capacity magazines for decades which will now become criminal conduct.

Felons who possess a gun, ammunition, or even an empty magazine of ANY capacity are already committing felonies.  Criminals who are willing to commit murder will not be deterred by laws making it a misdemeanor to possess magazines with a capacity over 10 rounds.  Imposing these restrictions on law-abiding Californians accomplishes nothing.

The goal of making our streets safer is admirable, however enacting ill-thought out laws that disproportionately affect law-abiding gun owners will make criminals of us all.

Michele Hanisee is Vice President of the Association of Los Angeles Deputy District Attorneys (ADDA). The views and opinions expressed in this article are those of the author and may not necessarily reflect the official policy or position of the Association of Deputy District Attorneys (ADDA

Legislature should fix the Harmful Repercussions Created by Prop 47

By Marc Debbaudt

Prop 47 has unleashed a torrent of harmful repercussions that the creators of this impetuous piece of legislation never considered – and have yet to take responsibility for or address. It is now time that the California Legislature fix some of the most glaring flaws.

I have expressed my disdain for this ludicrous piece of social engineering that purportedly would create safer neighborhoods and schools across the state. It is becoming increasingly evident that the complete opposite has occurred. Innocent people are incurring heavy costs -physical and emotional – while criminals are reaping the rewards due to a lack of punishment and no incentive to abide by the law or be well-functioning members of society.

Many community organizations and stakeholders have borne the brunt of Prop 47’s costs and consequences. These include the community as a whole, residents, retail establishments, law enforcement agencies, other members of the criminal justice system, as well as rehabilitation and treatment centers.

Outlined below are the major areas in which substantial negative impact has been documented due to the passage of this legislation, whether it be through physical and emotional suffering, increasing monetary costs, and increasing crime rates resulting from no clear punishments or repercussions.

Community

Since the passage of Prop 47, close to 4,000 inmates have had their sentences reduced and have been released from state prisons into our communities.

In the city of Los Angeles, violent crimes such as aggravated assaults and robberies soared 20.6 percent through the first nine months of 2015 compared with the same period in the previous year. Property crimes such as burglaries and motor vehicle thefts rose 10.9%

Of the nearly 4,500 people that L.A. County Sheriff’s deputies arrested for Prop 47 crimes since the initiative’s implementation in November 2014, more than 460 have been arrested again – some on multiple occasions (May 2015). This means that people who theoretically would have been behind bars for the crimes they had committed are roaming the streets and continuing to victimize innocent and law-abiding residents.

The toll of these crimes on the victims does not end when the crime is completed. When a criminal steals property, takes an identity to commit a theft, or forges checks, the victim suffers a loss of personal privacy and security that lingers. It takes valuable time to contact the authorities, banks, creditors, and businesses – not to mention to regain (if at all possible) the sense of security and privacy that the victims once had.

Criminal Justice System

No matter what your criminal history may be – even if you have served time for a serious or violent crime – you can no longer be sent back to prison if convicted of a new theft or drug crime because they have been reclassified as misdemeanor offenses. Basically, an individual’s prior criminal history is no longer considered in determining whether an offense should be prosecuted as a felony since Prop 47 offenses, with limited exceptions, can only be misdemeanors, meaning state prison is no longer a possible punishment or deterrent.

According to the LAPD and LA County Sheriff’s Department, narcotic-related arrests in those two departments have decreased by nearly 50%. Officers realize the time spent arresting narcotic offenders for misdemeanor crimes is a waste of time because there is virtually no punishment and no chance for drug treatment.

Sheriff Jim McDonnell wrote an article that details how “Thanks to Prop. 47, Californians are less safe than they were a year ago.”

The costs to prosecute these crimes haven’t just magically disappeared. To the extent they are being prosecuted by City Attorneys, the costs have just been shifted from the County District Attorney to other local agencies. That is not savings; that is merely a shift of costs from the County to the City. Reclassifying a crime from a felony to a misdemeanor does not change the associated court costs. These costs are experienced throughout the criminal justice system, include paying for courts, prosecutors, public defenders, clerks, court reporters, jurors, bailiffs, transportation from jails to courts, etc.

Rehabilitation and Treatment Facilities

Due to Prop 47’s passage, the criminal justice system lost all leverage to mandate rehabilitative drug programs. There is no longer any incentive for an offender to accept a court-ordered 18-month to two-year intensive treatment program when the actual maximum consequence for a drug conviction is only six months in county jail. Few receive the maximum unless they lose after going through a jury trial.

Treatment program enrollments are down 60% in L.A. County, and addicted offenders are not getting the treatment they desperately need because they don’t have to attend and complete a rehab program. The social engineers of this policy claimed that it was about rehabilitation, yet there is no rehabilitation taking place.

In 2013, 60% of adult males booked into jails across the country tested positive for drugs, regardless of their offense (LA Times). It is undisputed that drug use increases the odds of criminal activity, yet no policy scheme has been created that addresses this problem.

Drug addicts now often escape punishment for crimes they commonly commit to support their habits, such as shoplifting, writing bad checks and any thefts under $950 – even of guns. This leniency in punishment only helps to facilitate criminal behavior and does nothing at all to address the root cause of the problem – drug addiction.

Perhaps the beliefs that we cannot simply incarcerate our way out of our nation’s drug problem and that rehabilitation is the key, have merit. However, rehabilitation cannot work when those who need it do not have to attend the programs designed to accomplish this goal.

Sex Crimes & DNA

Proposition 47 took away a critical asset to fight sex crimes when it reduced the penalty for possession of date-rape drugs to a misdemeanor. The only reason to possess a date-rape drug is to commit a heinous crime. So, why would you allow possession of the drug that facilitates this crime to go unpunished? This legislation gives these criminals a free pass to commit their crimes by ignoring this obvious way to potentially prevent them from occurring.

Thousands of fewer DNA samples are being taken from suspects every month because state law permits police to collect DNA only from felony suspects. This will not only make it much harder, if not impossible, to solve old cases such as murder and rape, but the percentage of future violent crimes that could have been solved quickly through DNA matches will decrease dramatically.
Critics have cried out that the U.S. corrections system is simply a “revolving-door” that does not work or help to address the root causes of criminality. Prop 47’s answer is to simply remove the door— to release those who commit crimes and permit them to freely roam our streets without consequence for their actions. A policy premised on a different approach to treating criminals has instead devolved in actual practice into no punishment and no rehabilitation, which is an indisputable and fatal flaw.

Prop 47 has not only sacrificed law-abiding citizens, but it also has yet to deliver on its intended goal of changing the behavior of drug addicts and thieves. Releasing thieves to commit more crimes and allowing drug offenders to roam freely in the community without mandating and imposing treatment does absolutely nothing to change criminal behavior. It is simply reckless.

At this point, the question going forward has to be: What do we value more? Do we value the repeat drug offenders who steal and assault others to feed their habit, or the law-abiding residents who are the victims of these criminals? The common sense answer seems obvious to me.

For factual information, please read our previous blogs that detail the various problems with Prop. 47 (1) The Public and Private Deception of Prop 47 (2) California’s Proposition 47 – The LA Times Cost Savings Myth (3) Proposition 47 lottery: When will your crime victim number be called? (4) Reaping the Bitter Rewards of Proposition 47 and related blogs (5) Punishment, Not Programs (6) What Realignment Has Done to Restitution Collection and How It Can Be Fixed and (7) Why are victims playing second fiddle to convicted criminals?

Marc Debbaudt is President of the Association of Los Angeles Deputy District Attorneys. 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 Los Angeles Deputy District Attorneys.

Is Prison Overcrowding Actually a Bad Thing?

By Marc Debbaudt

While thinking about the debacle known as Prop. 47, it occurred to me to ask how we actually got into this situation. As I detailed in a recent Los Angeles Times op-ed, California’s Prop. 47 revolution: Voters were sold a bill of goods, Prop 47 is nothing but a piece of deceptive social engineering. The proponents called this piece of legislation “The Safe Neighborhoods and Schools Act,” when in reality it had absolutely nothing to do with safety at all. How could anyone believe that reducing felonies to misdemeanors could possibly make our neighborhoods and schools safer? The voters were misled. The proponents thrust upon us a piece of legislation that does not create any clear benefits to society, but instead benefits only drug addicts and thieves.
So I began thinking, what is going on here? Why are we being soft on criminals and letting them benefit at our expense? This appears to be part of a larger malevolent or, at least, misguided social agenda.

Let’s put it in context. First we had the Three Strikes law in 1994. With the passage of this legislation, some people bleated that the state was “locking up pizza thieves for life”. That was a distortion of the truth. The state was locking up criminal recidivists who had at least two prior serious and violent crimes and yet continued to break the law. In other words, the people of this state were saying to three-strikers that they had had enough of recalcitrant violent criminals who continue to offend without sufficient repercussions. Even the apparently low-level theft of a pizza from a pizza delivery boy can evolve into something awful given the array of possible situations that can develop when a thief confronts a victim. Nevertheless, legislation to modify the Three Strikes law was passed making it applicable only to offenses that are considered serious and violent. Thus we began to soften the consequences of crime.

Next, in 2011, the misguided experiment called AB 109 or Realignment was passed. This shifted felons from state prisons to county jails, all in an big effort to reduce prison “overcrowding”. Realignment did not reduce the number of felons; it simply shifted felons to county jails to serve the rest of their sentences. The State did this to pass the costs of housing felons onto the counties. There were no cost savings. County jails were not meant to hold inmates for periods exceeding one year, but thanks to this piece of legislation, county jails are now housing some criminals for 20-plus years which, of course, ultimately reduces the availability of housing for other felons and misdemeanants.

Then Prop 47 followed in November 2014, reducing a host of serious felonies to misdemeanors. With that, there was another brilliant piece of social engineering that our Legislature passed under the radar. It was the reduction of misdemeanors from a potential sentence of 365 days to 364 days. Now you may ask, why would the Legislature do that?

Here’s why: If a crime carries a 365-day sentence, it is considered an “aggravated offense” in Federal Immigration Courts. This increases the likelihood that an immigrant who is here illegally and committed a crime would get deported. Our “compassionate” Legislature decided deporting those here illegally who commit crimes while here is somehow “inhumane.”

Now we learn that a new piece of legislation has been passed in which prosecutors are mandated to consider immigration consequences when making deals with immigrants who are here legally or illegally. In other words, the Legislature wants prosecutors to structure deals to avoid deportation.
The madness doesn’t stop there. Recently, the state decided that non-violent Second-Strikers are to receive early prison release and early parole consideration. Instead of serving 80 percent of their sentence, these individuals are now considered for early release after they have served just 50 percent, or if they are within 12 months of having served 50 percent of their sentence.

By the way, none of these laws considers whether the defendant who is to be released has a violent and lengthy criminal history, a long history of violating parole or probation conditions, or may still pose a danger to society.

Supporters of leniency in sentencing say it’s necessary to reduce prison overcrowding. They want us to believe that prison overcrowding is a legitimate and growing concern and that we must combat it.

But what is prison overcrowding exactly and why is it such a worry?

Before I answer that, we should first address what a prison is. A prison is a place where convicted felons are confined because they committed a crime that showed their unwillingness to live in harmony with others and be law-abiding members of society. We cannot trust them to participate in our community, so we take away their freedom and lock them up. There are three main reasons to incarcerate these law breakers: rehabilitation, punishment, and deterrence. Punishment and deterrence are now anathema to those who tinker with public safety and foist reforms upon us. Today, anything other than rehabilitation is characterized as an inhumane, uncompassionate response to crime – never mind that incarcerated criminals are not committing crimes on the streets.

I have always thought that prison should be so bad that you never want to go there, and so bad that if you are ever sent there you will never want to go back. And the reality is that prisons are bad places. People who commit crimes are forced to sleep in small quarters with individuals who are just like them. It’s hard to sleep or to enjoy your housing with chronic rule breakers surrounding you. I’m not suggesting that we be inhumane and I am certainly not advocating torture or starvation or anything of the sort. I am simply suggesting that prison should not be comfortable or nice and that some discomfort and overcrowding should be tolerated.
So when does overcrowding reach the point that we declare it inhumane and decide that we need to start releasing these law breakers back onto the streets before their sentence is fully served? Who determines how many prison bodies per square-foot is reasonable?
Simply put, I don’t buy the idea that prison overcrowding ever reached the point that it became inhumane or intolerable; California prisons were never stacking prisoners like sardines into a can. Felons deserve to be in prison. Obviously, to the extent you accept the premise of overcrowding, one solution to overcrowding, as some sensibly minded people suggest, is that we simply need more prisons.

Why are prisons overcrowded? Here are some possible answers:

(1) The rate at which criminals are being incarcerated is exceeding the rate at which prisoners are being released or are dying. So, let’s be clear right out of the gate, solving the prison overcrowding problem does not begin to address the increasing crime problem we are facing. In fact, addressing prison overcrowding doesn’t even acknowledge that there are crimes going on outside of prisons or that good, law-abiding people are suffering. It places relieving the stresses of criminal confinement above crime itself. It places concern for the criminal above concern for the victim and community.

(2) Improvements in law enforcement tactics have led to more people being arrested for their crimes. Law enforcement agencies have become much more productive due to increasing technology and more proactive approaches to policing. More criminals caught equals more need for prison space.

(3) The same Legislature that is now letting criminals out of prisons and jails keeps creating new types and classifications of crimes.

(4) Harsher sentences are now being imposed for certain crimes.

In 1994, the Federal Bureau of Prisons (FBP) examined prison overcrowding and found that, while overcrowding is a problem in many facilities, it is not known whether it actually had any negative affect on inmates. In other words, maybe it could positively affect inmates. Maybe it makes these individuals want to behave while in prison so they can be released earlier and maybe it motivates them to never commit another crime that would land them back in prison. If recidivism is increasing because our prisons are no longer overcrowded, then maybe overcrowding helps reduce rates of recidivism.
Research from 2003 indicates that prison management style, rather than jail overcrowding, may be related to misconduct. Overcrowding may potentially have a direct effect on prison management by creating a far more stressful environment on the corrections officers and wardens to manage the increased population. It seems to follow logically that we must increase the prison staff – not release criminals – when the prison population increases.

Another study in 2006 found that a high prison population has a direct, negative effect on the psychological state of inmates. Overcrowding has been known to cause stressful situations. But isn’t prison supposed to be stressful? Aren’t negative psychological states appropriate and a predictable consequence for those sent to state prison? I guess our social engineers want us to be sorry prison doesn’t make prisoners happy.

A study on prison population density in Japan found that it had a direct correlation with prison violence rates. This study confirmed the obvious: The more prisoners you have, the more violence you have in prison. I do not understand why this would be a reason to reduce the prison population and release prisoners onto the streets to harm law-abiding citizens. Which is worse: Prison being bad for prisoners, or the physical and emotional harm that released prisoners inflict on victims.
In today’s system, apparently the solution to all the problems caused by prison overcrowding is to reduce the prison sentences and reduce crimes from felonies to misdemeanors in order to make prisoners happier and set them loose in society.

When the media chooses to discuss this topic we are given statistics like: “The United States currently incarcerates 1 in nearly 100 American adults.” That sounds awful, but what if it were presented like this: “Nearly one in 100 American adults commits and is incarcerated for a crime. The media portrays the problem as if the government is excessively locking up Americans, as opposed to properly incarcerating criminals. It’s a subtle distortion of reality. That distortion leads to loaded rhetoric suggesting that those of us who have greater compassion for victims than defendants suffer from “incarceration addiction.” Apparently being tough on crime and criminals is a now a bad thing in our society.
Social engineers claim there are better ways to protect our communities than through mass incarceration. They tout the benefits of rehabilitation and treatment and the promotion of personal responsibility – as though we live in a utopia. They claim there is a way to hold criminals accountable while providing them with an opportunity to get back on their feet. They push community supervision programs and alternatives to incarceration as though these programs work. It all sounds nice.

But the truth is simple; the history of rehabilitation is a history of massive failure. Rehabilitation simply does not work. The fact is, while criminals are incarcerated, they are not committing crimes against good law-abiding people. Isn’t that a good enough reason to put them in prison?

With all of the negative consequences and deceptions from Prop. 47 and Realignment, I shudder at the thought of what’s coming next. Apparently, these reckless social engineers are now turning their efforts to eliminating the bail system, so that everyone will now be out of custody without having to post bail. They will claim poor people are not able to bail out, and the bail system is designed only for the rich. However, they won’t talk about the current availability of own recognizance (OR) release. They won’t talk about cite-out programs, which are the exercise of discretion in using the defendant’s promise, when he is not a threat to the safety of the public, to return to court without posting bail. Instead, they will continue to ignore what is currently in place, just like they did with the Deferred Entry of Judgment, Prop 36, and Drug Court programs when they decided to release untreated drug users and thieves into our communities. They won’t even begin to predict the costs on the administration of justice in the courts with such a reckless proposition.

So, my question is: What is their true goal in pushing their policies of leniency and decriminalization? One can only wonder, given the clear negative impact on the safety and wellbeing of our community and the victimization of law-abiding citizens that directly follows these new social experiments.

For factual information, please read our previous blogs that detail the various problems with Prop. 47 (1) The Public and Private Deception of Prop 47 (2) California’s Proposition 47 – The LA Times Cost Savings Myth (3) Proposition 47 lottery: When will your crime victim number be called? (4) Reaping the Bitter Rewards of Proposition 47 and related blogs (5) Punishment, Not Programs (6) What Realignment Has Done to Restitution Collection and How It Can Be Fixed and (7) Why are victims playing second fiddle to convicted criminals?

Marc Debbaudt is President of the Association of Deputy District Attorneys. 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 Los Angeles Deputy District Attorneys.

New Law: Plea Bargains Must Try To Avoid Deportation

By Marc Debbaudt

In my continuing quest to educate the public about the legislature’s new sanctuary from safety philosophy, I turn my attention to a new law that goes into effect on January 1, 2016 that creates a double standard for United States citizens and non-citizens in this country (aka “illegal aliens” or “undocumented aliens”).

Governor Jerry Brown signed Assembly Bill 1343, authored by Assemblymember Tony Thurmond (D-Richmond).  This bill imposed a new requirement on prosecutor’s statewide, requiring prosecutors to structure pleas bargains that seek to avoid deportation of non-citizens who plead guilty to crimes committed in California.  Section 1016(3)(b) is added to the Penal Code, to read: “The prosecution, in the interests of justice, and in furtherance of the findings and declarations of Section 1016.2, shall consider the avoidance of adverse immigration consequences in the plea negotiation process as one factor in an effort to reach a just resolution.”

It’s outrageous — the Legislature has declared that prosecutors MUST try to avoid a plea agreement that would lead to deportation!  In other words, prosecutors should give illegal aliens a better plea deal than citizens in an effort to avoid deportation of an illegal alien who has committed a crime.  What possible justification can there be for the Legislature to elevate illegal aliens above citizens, that would mandate prosecutors to provide a better plea deal for an illegal alien than they would a citizen simply to have the illegal alien not face the deportation consequence of their criminal act?

Since state law will now mandate that prosecutors must try to avoid a plea deal that leads to deportation, will defense attorneys or Judges be allowed to make the DDA state what consideration they gave to immigration consequences when making a plea deal?  Are elected District Attorneys now going to have to put in writing office policies to implement this new law?  Will citizens who commit the same crime as illegal aliens be able to claim they are being denied equal protection under the law, that their status as citizen makes them subject to harsher punishment than an illegal alien?

The reality is that any policy that turns a blind eye to illegal activities – including those that make it easier for people who have been convicted of crimes to remain in this country illegally -is a bona fide threat to public safety.

This new law is similar to SB 1310 which Gov. Brown signed into law a year ago.  That bill 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.

One must ask – what was the true motivation behind these two pieces of legislation?

Marc Debbaudt is President of the Association of Deputy District Attorneys. 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 Los Angeles Deputy District Attorneys.

Reed and DeMaio Continue Assault on Public Employees

Despite a lack of public support, Chuck Reed and Carl DeMaio are persisting in their attempts to destroy public pension systems throughout the state of California. The State Attorney General just released Title and Summaries on their two latest pension-assault initiatives, although Reed and DeMaio they have said they will only circulate one.

This will be the third time in the past two years that Reed has gone through this process, and it remains to be seen if these initiatives will succumb to the same fate of his past two attempts: uncirculated.  Reed acknowledged there is no public clamor for his initiatives, telling Jon Ortiz of the Sacramento Bee that he needed to conduct polling to determine public support for the initiatives, but that he would need 60% support to begin circulation and then he would then solicit $2-3 million to pay signature gatherers to circulate the initiative.  He said he would need to raise $25-30 million to mount a statewide campaign.

It is no wonder why voters don’t want to follow Reed’s lead on public pensions, given the disaster his 2012 pension initiative created in San Jose.  That initiative led to a soaring increase in the city’s crime, combined with the exodus of hundreds of police officers and other public employees.  Ironically, only days before the Attorney General’s title/summary, the San Jose City Council reached agreements with all of its employee groups to scrap Reed’s 2012 pension initiative. The city rightly decided that the millions it had paid in legal fees—and the millions it agreed to pay public employee unions for the legal fees they incurred challenging Reed’s initiative —was enough waste of taxpayer dollars.  Reached for comment after this action, Reed expressed his dismay that the city had decided not to waste additional millions trying to overturn 65 years of California Supreme Court case law on vested rights.

The California Attorney General just released Title and Summaries have been released on the two Chuck Reed/Carl DeMaio pension initiatives.  The current Reed initiatives would, amongst other changes:

Eliminate defined benefit retirement for new public employees hired after January 1, 2015, and does not require employers to provide new employees with any retirement at all.

Takes away disability benefits for police, firefighters and other workers injured in the line of duty and unable to return to work,  since the basis on which these benefits are provided (defined benefit plans)  are eliminated and  no replacement plan exists that can provide those benefits.

The initiative prohibits commonly accepted pension financing of closed pension systems and affecting the financial stability of current pension systems.

A just released poll (conducted after the title and summary was released) demonstrates the lack of support for Reed/DeMaio and their initiatives. That poll showed neither initiative garnered more than 42% support—and opposition at 42% to one initiative and 40% to the other.  The undecided voters are further bad news for Reed/DeMaio, as initiatives usually lose undecided voters when faced with a well-funded opposition campaign—which there will be should either initiative qualify for the ballot.

Contrary to Reed’s claims, taxpayers and public employees do not benefit when a pension plan is closed.  A recent study from Canada debunked the claim that Canadian taxpayers and other stakeholders would benefit from converting public sector DB plans to DC plans. It cited studies and experience of US public employers to make the case.  “[A]after examining the literature on the experience in other jurisdictions and modelling what the ramifications would be in converting a large Canadian DB plan to DC, we found that none of the stakeholders would ultimately be better off.”

While Reed scrambles to find money to fund his third attempt to qualify a statewide pension initiative, the lessons of Phoenix and Cincinnati loom large.  In both those cities, well-funded, out-of-state interests tried to alter drastically those cities’ pension systems through ballot initiatives.  Each time, the initiatives were soundly defeated by an opposition campaign of citizens, public employees, and public officials who exposed the numerous flaws and unsound public policy in the initiatives.  We at ADDA are going to vigorously engage in this fight should Reed circulate his initiative – by regularly educating our members so you can educate your family, friends and neighbors, and by joining other public safety employee groups to mobilize against this initiative.

If you want to learn more now about pensions and get the facts, please visit a great website called Let’s Talk Pensions run by Californians for Retirement Security, a coalition of more than 1.6 million Californians representing public employees and retirees.

For factual information, please read our five previous blogs that detail the pension issue and the financial disaster that Chuck Reed and Carl DeMaio want to create in California: (1) One Pension Scheme Shelved – New Ballot Measure Planned, (2) Attorney General: Reed initiative eliminates constitutional protections for vested pension benefits,  (3) The destruction Chuck Reed wants to bring to California, (4) Attention Shoppers: Don’t Sign that Misleading Pension Petition!, (5) Your Pension is Under Attack and (6) Fuzzy Math Continues to Drive Public Pension Hysteria.

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.

The Public and Private Deception of Prop 47

By Marc Debbaudt

As supporters of Prop 47 furiously try to convince the public of their very dubious claim that the initiative has resulted in monetary savings, Californians have suffered a myriad of other real costs as a result of this measure. Prop 47 certainly does not create any clear benefits to society, but only to drug addicts and thieves. The claim there are savings is a monumental misconception.

The numerical value of the real costs of this policy that has been inflicted upon Californians through a misleading initiative is never calculated. The ignored costs range from a spike in violent crime and property crimes, increased rates of recidivism, and an abrupt decrease in the population of participants in drug and mental health treatment facilities throughout Southern California.

The physical and psychological costs of the increase in property and violent crimes on citizens, store owners, and victims have no price tag.  As Los Angeles County Sheriff Jim McDonnell recently expressed, there have been 30 homicides since the passage of Prop 47 by individuals who otherwise would have been off the streets and in the County jail for previous crimes they had committed which now fall under Prop 47.  That’s real trauma in the lives of decent, law-abiding human beings. 30 victims, and their families, as well as those who were forced to witness inexcusable violence. All of these pay a dear price that can’t be monetarily quantified-all because of Prop 47.

The deceitfully named Safe Neighborhoods and Schools Act is having a substantial negative impact on society throughout the City and County of Los Angeles in both the associated costs of crime and its psychological costs. Crime will undoubtedly continue to rise due to a lack of proper punishments and incentives to make individuals abide by the law. Some criminals have gleefully told reporters that Prop 47 has incentivized them to continue to commit crimes. In a Washington Post story appropriately headlined, “A virtual get-out-of-jail-free card“, one thief in San Bernardino County, who had been caught shoplifting, even bragged about carrying a calculator to ensure he did not exceed the $950 limit that would make his crime a felony.

The toll of crime on people victimized does not end when the crime is completed. When a criminal steals property, takes an identity to commit a theft, or forges checks, the victim suffers a loss of personal privacy and security that lingers and does not evaporate. It takes valuable time to contact the authorities, the banks, creditors, and businesses. What is the cost of that?

Prop 47 has also failed in its stated purpose of rehabilitating drug addicts. Statewide, the number of participants in both mental health and substance abuse treatment facilities has plummeted. The individuals that are committing crimes that fall under Prop 47 are now misdemeanors and are no longer required (by court order) to enroll in drug treatment programs or do time in county jail. Therefore, there is no longer a metaphorical hammer being held over their head to ensure they attend and successfully complete these programs to be effectively reintegrated into society. The social engineers claimed it was about rehabilitation, but there is no rehabilitation. Large sums of money are being spent on these drug treatment programs that no one will attend because there is no incentive to attend and complete the programs.

In seeking criminal justice, three overriding concepts are considered: rehabilitation, punishment, and deterrence. Punishment and deterrence are now anathema to the those who tinker with public safety and came up with Prop 47.  Anything other than rehabilitation is characterized as an inhuman, uncompassionate response to crime-never mind that while incarcerated criminals are not committing crimes on the streets. Under Prop 47, those same criminals are let loose on our streets.

With all of the evident negative consequences and deceptions that have been put forth by Prop 47, I am left wondering why this reckless policy was ever advanced.  What is the true goal? Anarchy? One can only wonder given the clear negative impact on the safety and wellbeing of our community and the victimization of the citizens that is a direct result of Prop 47.  The toll of Proposition 47 continues to climb, and it is not simply a monetary cost. It is a real cost on lives that no one wants to discuss.

Marc Debbaudt is President of the Association of Deputy District Attorneys. 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 Los Angeles Deputy District Attorneys.

California’s Proposition 47 – The LA Times Cost Savings Myth

By Marc Debbaudt

Savings, what savings? That was the first thought that came to mind upon reading the recent Los Angeles Times editorial musing about the “savings” that supposedly will follow on the heels of Prop 47 and how these “savings” should be spent. The Times editorial perfectly captured the naiveté of the Editorial writers, and their complete lack of understanding of criminals and the criminal justice system. There are no “savings.” Instead, all Prop 47 did was shift the costs and pass the buck.

First, the editorial claims that savings followed Prop 47’s reduction of felonies to misdemeanors attributes savings to fewer felony cases handled by the District Attorney’s office. To understand their contention you need to know that the LA City Attorney’s Office and nine other City Attorney Officers in this County handle misdemeanor cases in their respective cities, and the LA District Attorney’s Office handles misdemeanor prosecutions for the rest of Los Angeles County. In fact, Deputy District Attorneys are being reassigned to handle the increase in the misdemeanor caseload throughout the County as a result of Prop 47. Thus, contrary to the apparent belief of the LA Times, the crimes committed by those before Prop 47 are not only continuing to be committed but in increasing numbers. The big difference is that now they are charged with misdemeanors instead of felonies.

Second, the costs to prosecute these crimes haven’t disappeared. To the extent they are being prosecuted by City Attorneys, the costs have just been shifted from the County District Attorney to local agencies. That is not a savings, instead that is a shift of costs from the County to the City. The costs are the costs of Judges, prosecutors, public defenders, clerks, court reporters, jurors, bailiffs, transportation from jails to courts, etcetera. The costs don’t change in terms of courtroom time by virtue of a crime being designated as a misdemeanor or a felony.

The claim of “savings” as a result of fewer criminals going to jail likewise reflects a misunderstanding of the role of jail in the criminal justice system. Jails have primarily been a place for pre-trial detention of those facing felony charges, not the service of a sentence. Typically a sentenced felon goes to state prison, not jail; and a sentenced misdemeanant goes to jail, not prison. Under the other stellar piece of social engineering-realignment – has changed with many felons no longer serving their sentence in state prison, but in a county jail. And with Prop 47’s reducing felonies to misdemeanors, that has increased the burden on the jail system. Previously, those held pre-trial with bail set, instead of being released on their own recognizance, were held because they posed a danger to public safety and/or were not likely not to return to court unless they posted bail. With Prop 47, those same criminals who would have been held pending trial for a felony are now simply not booked into custody, or if booked, released before arraignment because the charge has been transformed into a misdemeanor.

The reasons those facing misdemeanors are not held in custody are multifold. First, if a person is in custody when arraigned on a misdemeanor, they must be brought to trial within 30 days of arraignment. Trials are rarely set on the last possible day they can commence, but instead about ten days before the day trial will commence to make sure everything is lining up and the defense is ready-in short, an impractical 20 days between arraignment and trial. In addition, holding a person pre-trial on a misdemeanor uses up most, if not all, of the custody time that would be imposed upon conviction. Of course, this starkly contrasts with the 85 day period from the time of initial arraignment of the complaint to the last day for trial for those accused of felonies.

Once again, the actual costs of not holding in custody the now Prop 47 misdemeanor defendants is spread elsewhere-to the community, where individuals and businesses bear the real cost because criminals are returned to the street to commit property crimes against them. Judging by the increasing property crime rate, it is obvious this is exactly what is happening despite some who claim it is too early to know why. Those criminals that would have remained in custody facing a felony trial are now rampaging through our communities, committing their misdemeanor crimes with near impunity.

As I detailed in my Los Angeles Time op-ed, Prop 47 was deliberately and misleadingly titled the “Safe Streets and Schools Act”. It had nothing to do with making our schools “safer” and it darn sure hasn’t made our streets safer. Apparently the Times believes we have imported a new group of criminals from some vortex to commit the crimes that were formerly felonies before Prop 47. However, reality suggests the same criminals are committing the same crimes but in increasing numbers-thus Prop 47 merely shifted the costs associated with housing a defendant in a penal institution to the costs incurred by real victims, businesses, and other prosecuting agencies of these exact same crimes. The hope that in the world of misdemeanor sentences these criminals will be held even marginally accountable for their crimes is fading.

One has to wonder how high the costs to crime victims must climb for state voters to regain their senses and fix the mess they created when they imposed this reckless sweeping social change to our criminal justice system.

Marc Debbaudt is President of the Association of Deputy District Attorneys. 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 Los Angeles deputy district attorneys.