I recently received a call from Governor Brown asking me to support his
proposed initiative
to eliminate prosecutor's ability to direct file against juveniles and to allow "nonviolent" prisoners to be released earlier in their sentences. I told the Governor I would consult the ALADS Board of Directors for a decision, and have done so. As the Board of ALADS, we have decided to oppose the Governor's initiative, for reasons I detail below.
The Governor proposes to allow "nonviolent" inmates to be released earlier in their sentences by allowing the inmates to avoid serving time on any "sentence enhancement" imposed at their sentencing. These sentence enhancements add time to the base sentence for a crime. Make no mistake about it, the proposal to offer some state inmates a
chance at early release
is flawed.
Sentence enhancements add additional punishment for a range of conduct, whether it be the dollar loss they cause, the repeat nature of the underlying crime, or the motivation for the crime. For example, all persons convicted of grand theft receive a sentence in a "determinate" sentencing range-but if the dollar loss of the theft exceeds loss exceeds $65,000 there can be a "sentence enhancement" of one year, and up to four years if the loss exceeds $3.2 million. A person who commits a hate crime, and has a prior hate crime conviction, can receive an enhancement of one year. A gang member who commits a "nonviolent" crime for the benefit of his gang, motivated by his desire to gain status in the gang or to increase the status of his gang, would face a sentence enhancement for two-four years for that crime.
Without going through a laundry list of every sentence enhancement, a common thread runs through all enhancements. Sentence enhancements punish felons for the conduct they committed which elevated the damage caused by the "base crime" for which they were convicted. Sentence enhancements also serve to deter others from that conduct because it will result in increased punishment. Most importantly, sentence enhancements provide a measure of justice to victims victimized to a greater degree by the offender than an "ordinary" victim of that underlying crime, ensuring punishment meted out to that offender is proportionate to the damage they caused victims
The ALADS Board believes that the
Governor's initiative
discards and disregards the victims of crime by allowing the offender to avoid punishment a sentencing judge concluded provided justice for those victims. Therefore, we oppose the Governor's proposal to allow "nonviolent" offenders to escape the requirement to serve time for sentence enhancements.
Likewise, we cannot support the Governor's measure because it seeks to remove from prosecutor's discretion to file charges directly in adult court for a select group of juveniles who have committed certain serious or violent offenses. The Governor compounds this mistake by proposing also to increase the burden on prosecutors by removing from current law the presumption that a juvenile is unfit for juvenile court when a prosecutor seeks a Judge's approval to remand the juvenile offender to adult court. Again, we considered the Governor's stated rationales for his proposal on direct filing and found them both lacking. First, the Governor argues that prosecutors often must decide within 48 hours whether a juvenile should be charged as an adult. That argument simply fails to persuade. Direct file cases involve the most serious of offenses, and prosecutors are often in continual communication with police about such cases long before an arrest is made requiring an issuing decision.
We are unaware of, and the Governor does not cite, a case or series of the case that implies injustice results from a 48-hour charging window.
In fact, the statistics on direct filing across California shows prosecutors use great restraint and judgment when deciding to direct file. For example, out of
125,474 referrals handled by probation departments in 2012
, only 0.5 percent (604 cases total) resulted in a direct file into adult court. There simply is no merit to the argument that a 48-hour filing window has led to injustice and placement of non-deserving juveniles in adult court. We believe that prosecutors have and will continue to use wisely the direct filing power, and oppose its removal
Governor Brown's second stated reason for the change in the direct filing is that "
Judges should judge. Prosecutors should prosecute.
" While a catchy turn of words, it misrepresents the role of judges and prosecutors in the judicial system. In the judicial system, prosecutors decide what, if any, charges will be filed; judges decide sentences imposed upon conviction.
The role of prosecutors is to decide what to file and where to file was emphasized in 2002 by the
California Supreme Court
when it upheld the power of prosecutors to directly file against juveniles in adult court:
"[E]xecutive power traditionally vested in prosecutors to decide what charges shall be alleged, and against whom charges shall be brought.
This broad power to charge crimes extends to selecting the forum, among those designated by statute, in which charges shall be filed."
(We ignore the irony of Governor Brown's statement that "Judge should judge," as in this very same initiative Governor Brown seeks to change current law and allow to be tossed aside sentence enhancements imposed by judges.)
We greatly appreciate the Governor being open to hearing our perspective on his initiative. However, we have decided to oppose Governor Brown's initiative because we believe it unintentionally discards and disregards victims of crime, decreases public safety, and lacks plausible reason(s) to eliminate direct filing. We urge all voters in California, should this measure qualify for the ballot, to also oppose this initiative.
