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.

Prop. 66 lawsuit is an insult to California voters

By Michele Hanisee

So much for respecting the will of the voters.

The moment the final ballot count proved that voters had enacted Prop. 66 – the death penalty reform initiative – opponents rushed to court to block the initiative. Although the legal challenge is limited to just a few clauses of Prop. 66, the Supreme Court has just announced that implementation of all parts of the initiative will be stayed pending their review of the lawsuit.

Prop. 66 preserved the death penalty for the most heinous criminals by enacting critically needed reforms to the system. The ADDA and our public safety partners worked hard to promote it and secure its passage. At the same time they passed Prop. 66, voters rejected a competing initiative that would have eliminated the death penalty and allowed criminals who kill cops or rape and murder children to live out their lives in prison.

The opponents of Prop. 66 falsely claim that Prop. 66 would disrupt the courts, cost more money and limit the ability to appeal. In fact, it does the exact opposite. Among other things, it will require that a defendant who is sentenced to death be appointed a lawyer at the time of sentence, meaning the defendant’s appeal will be heard sooner. It will require appeals be heard within five years. And it will also allow the California Department of Corrections and Rehabilitation to reduce the cost of housing death-row inmates.

Having failed to convince the voters, death penalty opponents have resorted to the courts to try to thwart the will of the voters. It is cruelly ironic that the opponents are using the same tactics they use in death penalty appeals – frivolous legal challenges in court – to prevent implementation of the initiative that would have reduced the number of frivolous legal challenges in court. The same opponents who claim in one breath that the reforms of Prop. 66 won’t work, also complain in their motion that “It will also make it more likely, and more immediate, for persons sentenced to death to face their executions.”

The basic concept of democracy seems most lost on those who claim to be fighting for due process. Death penalty opponents refuse to accept that the citizens of California voted not just to keep the death penalty but also to reform the appellate court system and ensure the death penalty is carried out in a timely manner.

The Supreme Court’s decision to issue a blanket stay without hearing from the proponents of Prop. 66 is disappointing, but it is, at this point, nothing more than a minor setback. Rest assured the ADDA will vigorously support the effort to defeat this frivolous lawsuit.

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.

A Cautionary Tale from the East Coast

By Michele Hanisee

As California suffers from a rising property crime rate thanks to Prop 47, prepares for a flood of felons getting an early release from state prison thanks to Prop 57, and contemplates refusing to jail accused criminals before trial, a cautionary tale has emerged from Washington, DC. A four part series in May by the Washington Post exposed the city’s “Youth Rehabilitation Act” and brought to light just how deadly the desire to give convicted criminals a “second chance” can be.

Washington, D.C. enacted the “Youth Rehabilitation Act” in 1985 to protect youths “from the stigma of lengthy prison sentences.” The Youth Act allows convicted offenders under age 22 to avoid either imprisonment or the lengthy sentences called for by mandatory minimums for certain crimes. The Youth Act also allows for the offender’s record to be expunged upon successful completion of the sentence. All crimes are eligible for this treatment, except murder and a second violent crime while armed.

The Post series focused on the period since 2010, when 45% of all offenders in Washington, D.C. received sentences under this Act. The results were horrid. As detailed in the Post, 121 people in Washington, D.C. are now dead, murdered by those sentenced under this Youth Act. Thirty of the offenders were still on Youth Act probation at the time they committed murder.

Given that 73% of those being sentenced under the Act had committed a violent or weapons offense, it was predictable that they would take advantage of the leniency of the Act to commit more crime. More than 136 of the offenders let loose by the law were subsequently convicted of armed robbery, and at least 200 sentenced for a subsequent violent or weapons offense. Not only were “second chances” given, but repeat “second chances” were the norm–at least 750 offenders were sentenced under this act multiple times.

Typical of the offenders are Tavon Pickney, a now 20-year-old offender convicted of murder in 2015. Pickney told the Post that he wasn’t scared when charged with robbery in 2014 because, “I knew they were going to let me off easy.” Indeed, he was given a suspended sentence and probation by a Judge who at sentencing stated she believed “people should have the opportunity to change their lives.” Pickney subsequently admitted to the Post that he had committed at least a dozen robberies before his initial arrest for robbery in 2014.

The mentality of those who excuse criminal behavior for a “second chance” or more is exemplified by Washington, D.C. Judge Anita Josey-Herring. With prosecutor’s agreement, she sentenced Bijon Brown to a six-month suspended sentence in 2015 for shooting at two taggers, wounding one. A scant 29 days later, Brown opened fire on a rival tagger who surrounded[MH1] a bus he was on. Over prosecutors’ objections, Judge Herring sentenced Brown to a year and a day under the Youth Act.

>Nine days after his release, Brown was charged with a carjacking at gunpoint. Per Post reporters, Judge Herring was a mite defensive when Post reporters visited her courtroom. From the bench, “she cast blame on the juvenile victims of the first shooting, saying they had been “terrorizing” the neighborhood. Then she said the Metrobus shooting had looked like “something out of Straight Outta Compton because of the ‘mob’ of men that confronted Brown.”

In California, there has been a rush in California to excuse criminal behavior, whether it be Governor Jerry Brown with his love of “second chances” via Prop 57, or allowing who were under 23 years old when they committed violent crimes resulting in life sentences early parole hearings.

Next up on the horizon are proposals to abolish bail schedules from State Senator Bob Hertzberg and Assemblyman Rob Bonta. Their source of inspiration is the Washington, D.C. pretrial release system, which releases 91% of arrestees and sees about 11% of those released get rearrested for new crimes. Naturally, when reached for comment on these rearrests, the head of the D.C. pre-trial release system sniffed; “when it comes to human beings, you can’t stop people from making bad decisions.”

No, you can’t stop human beings from making bad decisions. However, you can protect the public by removing them from society via incarceration, thereby depriving them of the opportunity to repeat their bad decisions at the expense of others. As the Washington Post series painfully illustrates, the desire to give those who choose to commit crimes a “second chance” puts the life and property of innocent citizens in danger. California apparently will have to learn that lesson the hard way, just as Washington D.C. has with its “Youth Rehabilitation Act,” which we have written about extensively in previous blogs.

To read our previous concerns with the bail reform proposals, click here and here.

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.