My View: DA-Judge Battle Over Turf, Miss New Opportunities

Two weeks ago we reported that Yolo County District Attorney Jeff Reisig went to the Yolo County Board of Supervisors to discuss what he saw as a rising crime rate resulting from AB 109 and Prop. 47.

He leveled some of his concern at the judges when he said, “The challenge, frankly, is the courts and getting judges to adopt that type of approach.”

He added, “Currently the standard disposition of the court if someone is arrested on drug charges is they’re not given jail time at all. They’re simply referred out to probation.”

This raised the ire of the Yolo County judges who wrote in response, “This is not accurate.”

The judges note that, prior to Prop. 47, misdemeanor probation was not supervised. This has changed.

“The Yolo County Probation Department, in response to Prop. 47, has developed a structured, supervised probation program monitoring misdemeanor Prop. 47 defendants,” they write. “Under Prop. 47 probation, defendants receive and complete a drug treatment program. They are placed on formal probation supervised by a county probation officer for three years, and they must submit to searches for drugs and random drug testing. They must complete a probation-approved drug treatment program.”

However, at this past week’s Board of Supervisors meeting, Chief Probation Officer Brent Cardall told the board that both sides “are 100 percent correct.”

Mr. Cardall indicated that drug offenders who were being referred out to probation were not receiving drug treatment. On the other hand, he said that he had ensured to the judges that those offenders would receive treatment “and that did not happen.”

Mr. Cardall said, “The DA is 100 percent correct. There is definitely a gap in our resources.”

However, the judges are “100 percent correct, too, because when we first set this up, I gave them a commitment that we would treat all offenders. That did not exactly happen.”

This led the Enterprise to opine, “So that solves that, except for the fact that this sort of misunderstanding was allowed to become a public spectacle in the first place. You’d think the agencies involved would be able to communicate and figure out what was going on. Don’t they have phones down at the county offices?”

One supervisor told the Vanguard that the problem was that the judges “blasted Reisig when he was right on an issue they both should have known about and could have found out about by picking up the phone.”

That supervisor overlooks the fact that Mr. Reisig started this by publicly blasting the judges, blaming them for the standard disposition when they had previously been assured by the probation department that Prop. 47 drug cases would be handled with drug treatment, and now we find out that is not happening.

Both sides should have probably met to express their concerns before airing it publicly – although perhaps doing so sheds some light on a situation that might not have received attention otherwise.

My problem is this: I do not care about the turf battle, I care about getting the policy correct.

There are two problems here. One is that, while Mr. Reisig came to the Board of Supervisors blaming AB 109 and Prop. 47 for the uptick in crime, as we noted, the chain of causality is more tricky than that.

A January 2014 report, analyzing 2012 data, showed no statewide pattern between AB 109 Realignment and crime. A study from the Center on Juvenile and Criminal Justice found “no conclusive trends demonstrating a causal relationship between Realignment and crime, even among counties in close geographic proximity.”

They added, “There may be non-Realignment factors that inform an increase in certain crimes.”

This report offers a cautionary tale for Mr. Reisig’s analysis: “The lack of a clear pattern—in fact, it is hard to imagine a pattern that is more ambivalent and complicated—indicates the perils of drawing hard conclusions about a single, albeit important, public policy change such as Realignment based on short-term crime trends.”

If Realignment brought more crime, they conclude, “counties with higher proportions of realigned individuals would have experienced larger increases in crime in 2012, after Realignment’s implementation. Moreover, this hypothesis would mean that systems with greater local management, as opposed to reliance on the state system, would have greater increases in crime.”

Instead, they write, “The data do not support either conclusion; in fact, self-reliant counties seemed to have somewhat more favorable crime trends. In addition, violent crime trends do not seem to be affected by level of Realignment or by degree of local versus state management.”

Moreover, the supervisors seem to lack the understanding that we have the structure in place already to fix the larger problem of crime – we just need to have the courage to expand it for the new post-Prop. 47  world.

From our standpoint, Mr. Reisig has a potential solution right in front of his nose, and refuses to use it. Earlier in his presentation he bragged about the success of the Neighborhood Courts and how jurisdictions across the state and even the nation were looking to adopt it.

While the Neighborhood Courts have a lot of potential, advocates of restorative justice approaches argue that we should go further – much further. In November 2013, the Vanguard featured Fresno County Judge David Gottlieb as a speaker and he had implemented a restorative justice program in Fresno involving youth offenders.

Since 1982, Fresno County has had something called a VORP – Victim Offender Reconciliation Program, which has the ability to bring “victims and offenders together in safe mediation or family group conference settings to permit the offender to take responsibility for his or her actions, to make things as right as possible with the victim, and to be clear about future intentions.”

Right now the Yolo County program focuses mainly on victimless crimes, but Fresno has for 30 years been far ahead, bringing victims and offenders together.

The district attorney at the very least has the opportunity to introduce a restorative program for what would now be petty theft charges when an individual steals less than $900 worth of property. Why not implement the Neighborhood Court as part of the process to deal with those individuals?

Other states and localities have had success using the same restorative justice based approaches for drug offenses.

Last fall following the passage of Prop.  47 we noted a a 2009 journal article from Michael O’Hear out of the Marquette University Law School, published in the Stanford Law and Policy Review.

Professor O’Hear writes that specialized drug treatment courts have grown in popularity, “in large part from the unpopularity of what is generally seen as the principal policy alternative, that is, a continued reliance on the traditional criminal justice responses to drug offenses– or, more colloquially, on the ‘war on drugs.’”

Professor O’Hear notes, “Public support for the war flagged as it became clear that many drug offenders were unresponsive to threats of harsh sentences, (and) prison populations (and hence prison budgets) were escalating wildly…”

The professor proposed an alternative model for drugs courts, built around principles of restorative justice. He notes that, despite the rapid growth of such programs, drug cases “have generally been omitted from their coverage.”

He cites a program from Milwaukee, The Milwaukee Community Conferencing Program, or CCP, which “takes cases of nonviolent crime referred by line prosecutors prior to sentencing, and often prior to charging.”

He writes, “At the conference, CCP participants discuss the offense and its impact on the victim and the community more generally. They next try to reach an agreement as to what the offender will do to repair the harm. Agreements are embodied in writing, and include specific conditions for the offender that must be satisfied by a particular date. ‘Conditions often include some form of reflection (an essay, painting, or poem), letters of apology to the victim, specific community service, restitution in specific increments, tasks related to job/school, sharing experiences with youth, or [drug or alcohol] counseling/treatment.’ Successful compliance with the conditions will result in some benefit from the prosecutor: charge dismissal, charge reduction, or recommendation to the judge for a reduced sentence.”

He notes that, while there is no distinct “victim” involved, “the basic processes for drug cases are the same as for other cases.” The agreements that emerge are typically “community service and a reflection paper.” He adds, “The agreements also usually require the offender to undergo drug treatment, although sometimes it is recognized that the offender (despite dealing drugs) is not a user.”

He continues, “If the offender fails to comply with treatment, then another conference is called to determine what to do, with second chances usually afforded. Successive failures in treatment may result in termination and conventional felony prosecution. When the agreement is satisfied, the prosecutor will typically reduce the felony charge to a ticket or a misdemeanor.”

He writes that it is not clear why there are so few Restorative Justice programs that have followed the CCP’s lead in taking on drug cases, but now with California’s law reducing possession to a misdemeanor, it may make sense for Yolo County and other counties to examine successful model programs like CCP to see if they are a good fit.

Given that we already have the Neighborhood Court Program in place, it seems that expanding that program is a logical first step. But no one, at least publicly at the county level, seems to be talking about that.

—David M. Greenwald reporting

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