My View: Reisig Finds Himself on the Wrong Side of History and the Law Yet Again

By David M. Greenwald

The big news in the criminal justice circles this week was the unanimous California Supreme Court decision that affirmed the constitutionality of SB 1391.  This legislation coupled with Prop 57 completely changes the course of California’s criminal justice system by acknowledging the emergent science on juvenile brain development and limiting the ability of the state and prosecutors to punish younger teens—those under the age of 16—as adults.

The court decision comes as a tremendous blow to both the CDAA (California District Attorneys Association) and Yolo County DA Jeff Reisig, as both publicly opposed the legislation.  Neither CDAA nor Jeff Reisig has put out a public statement on the court ruling.

This is only the latest blow against both.  Last year both the CDAA and Yolo County DA Jeff Reisig challenged the constitutionality of SB 1437.  SB 1437 redefined felony murder so that people who were not the actual killer and not major participants in a crime did not face exposure to murder charges simply for being there.

Vern Pierson, the El Dorado County DA and President of CDAA, filed an amicus curiae in the Davidson case, arguing that it was unconstitutional because “[i]t unlawfully narrows and shortens long-standing murder sentencing laws that the people overwhelmingly voted to broaden and lengthen. It amends laws passed by the people in Proposition 7… despite the fact that no authority was reserved for the Legislature to make amendments to Prop. 7.”

He further argued that SB 1437 “amends laws passed by the people in Proposition 115 despite failing to meet the two-thirds vote requirement to amend expressed in that initiative.”

Deputy DA Ryan Couzens of Yolo County in November 2019 wrote, “SB 1437 was never legitimately passed in the first place.”

Ultimately the courts rejected those arguments—and the arguments against SB 1391 were actually fairly similar, that SB 1391 alters Prop 57 (which both Reisig and the CDAA also opposed) by strengthening the provisions against the transfer of juveniles to adult court.

In an opposition letter from the California District Attorneys Association in September 2018, they argued that the bill “eliminates the authority for a court to decide whether a 14 or 15 year old charged with certain serious offenses is unfit for the juvenile system.  This well-intentioned bill inappropriately applies a one-size-fits-all approach to situations that call for individual and unique examinations.  In so doing, SB 1391 puts our communities at risk.”

One of the public opponents of the bill was Yolo County DA Jeff Reisig, who was one of 43 California DAs to urge Governor Brown to veto the bill.

Reisig was worried that Daniel Marsh, found guilty of a double murder in Davis, could be eligible for relief under this bill.

At the time, he told the press that the office will fight “with every legal tool and argument at our disposal” to ensure Marsh serves his original life sentence.

“The pain and suffering that the Legislature and the governor have inflicted upon victims’ families, now and forever, by enacting a juvenile-court-no-exceptions rule that shields and limits accountability for even the most heinous and violent young killers in our society is unfathomable,” Reisig said. “California is less safe today.

“Our position then, as now, is that 1391 is unconstitutional but (the legislature) passed it regardless,” said Yolo County District Attorney Jeff Reisig in a quote in the Bee in 2019.

But the California Supreme Court did not agree.  It was a unanimous opinion where they ruled that SB 1391 furthers Proposition 57’s purpose and intent.

The court ruled: “While barring the transfer of 14 and 15 year olds to adult court is a change from Proposition 57’s statutory provisions, that change is what makes Senate Bill 1391 an amendment to Proposition 57. The amendment is fully consistent with and furthers Proposition 57’s fundamental purposes of promoting rehabilitation of youthful offenders and reducing the prison population. We therefore uphold Senate Bill 1391 as a permissible amendment to Proposition 57.”

Just as he was on SB 1437, felony murder reform, Reisig and the CDAA is wrong on the law and wrong on history.

Clearly, one of his big concerns is the conviction of Daniel Marsh for a double murder that was committed prior to when he turned 16.  But as others have pointed out, there are other remedies to keep someone like Marsh locked up.  While CDAA laments the one-size-fits-all approach to SB 1391, the previous law allowed for juveniles to be caught up in the adult system who had no business being there.

Designing a system for the aberrant albeit horrific case is not good public policy, especially as we have learned more about adolescent brain development and we better understand the phenomenon of aging out of crime.

As the court understood: “These changes were based upon developments in scientific research on adolescent brain development confirming that children are different from adults in ways that are critical to identifying age-appropriate sentences.”

The court noted: “Consistent with these changes, in November 2016, the public implemented a series of criminal justice reforms through the passage of Proposition 57.”

For juvenile defendants, Proposition 57 “largely returned California to the historical rule.”

Yolo County DA continues to attempt to cast himself in the light of a reformer—although recently he has attempted to position himself between the more progressive ones like Chesa Boudin and more traditional district attorneys.

The problem is that he has largely aligned himself with the CDAA, the organization for which he is in line to become President and which has opposed pretty much ever major reform effort.

Despite their vehement complaints about the scope of both Prop 57 (which they opposed) and SB 1391, neither Reisig nor the CDAA offered any sort of alternative remedy.  And I would go further, in that Reisig’s charging policies themselves were a case study for why the new laws were needed—under Reisig, Yolo County led the state in the direct filing of juveniles in adult court.

—David M. Greenwald reporting

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