My last two days in court, I observed a couple of interesting things that relate to recent reforms in the criminal justice system, as well as the changing views on crime and punishment.
On Friday, I watched an individual cop a plea to a misdemeanor drug charge. The defendant was sentenced to go through the PC 1000 program (Penal Code sections 1000-1000.6, the drug diversion program). The defendant pled guilty, understanding that if she did not successfully complete the PC 1000 program, she would be resentenced to the misdemeanor charge and would serve a year in the county jail.
Today, an individual copped a plea to the sheet (to all charges), over the objections of the district attorney. In this case, the individual accepted a split sentence of three years, meaning half the term would be served in county jail and the other half out of custody, but under mandatory supervision. This is a big change under AB 109, the realignment of the prisons.
The district attorney in this case vehemently disagreed with the charge. The defendant in this case had seven total convictions of driving under the influence. In this case. not only was the defendant pulled over by police, but refused to yield, led the police on a mile-long chase, refused to cooperate, and had to be Tased three times.
The DA argued that this guy is going to continue to re-offend and someone is going to die. She argued for a straight prison term.
Judge David Rosenberg, however, had a different view. He stated that if he gave the defendant a straight sentence – and he agreed that the defendant’s conduct and record were “poor” – that he would have to be released immediately upon serving the time. He felt he would be turned loose to re-offend. He stated that, at least with mandatory supervision, there will be a chance he can get the help he needs and he would be released after a year and a half under strict supervision.
The Impact of Prop. 47 on Drug Court
On the first issue, the point here is not to pretend that my anecdotal observation will trump empirical studies – and it is way too soon, in my view, for the empirical studies to have much merit. We are really in month three of the post-Prop. 47 world.
The Los Angeles Times on December 13, 2014, noted that, at the heart of the drug court program, lies “the threat of a felony sentence if participants flunk out.”
The article continues, “That threat was sharply reduced last month when California voters approved Proposition 47. The measure turned several felonies, including drug possession, into misdemeanors, reducing their maximum punishments from several years to up to a year in jail. Since 2011, many nonviolent-felony sentences are served in county jails.
“With jails in L.A. and other California counties releasing inmates early after serving only a fraction of their sentences, many drug defendants are looking at spending weeks behind bars for a misdemeanor,” they write. And many believe that some of the graduates would not have agreed to the drug program without the threat of a “felony hanging over your head.”
The question is whether you can make such a program work for defendants with only misdemeanors hanging over their heads and time in local custody. I guess we will see.
As I argued back in November, though, there are other ways to approach rehabilitation besides threat. My hope is that local authorities will look outside of the box for approaches to treating drug addiction.
The Times article interviews LA Deputy Public Defender Mark DeWit. He has an interesting and nuanced take on Prop. 47, calling the impact on drug courts the “largest unintended consequence.” Many of his clients, he argues, will take even a year in jail because they believe they’ll get early release due to jail overcrowding.
He also voted for Prop. 47, calling it “a touch medieval” to incarcerate addicts in state prison and noting that the drug court only serves “a small sliver of the population that needs help.”
Thoughts on Crime and Punishment
Judge David Rosenberg gave us some rare insight into the thinking of a judge on issues of crime and punishment. With the advent of mandatory minimum sentencing and strict sentencing guidelines, a lot of judicial discretion has been taken away over the years.
In fact, many people, myself included, would argue that the prosecutor rather than the judge is the most powerful actor in the legal system. A prosecutor decides whom to charge and with what – they are the gatekeepers. They still have to convict, but in terms of single actors, prosecutors are much more powerful than the judge.
But with the rise of AB 109 and now Prop. 47, that is changing a little. There is an acknowledgement that the system of incarcerating for long sentences does not work. The recidivism rate in California is the highest in the country.
The defendant in the case I observed yesterday was not sympathetic. He had seven, yes that’s right, seven separate DUIs, including the current case where he resisted arrest, took the police on a pursuit, required Tasering and refused to comply with a screen for controlled substances.
He did this despite suspended licenses and other controls. So I think the DA was right to say that this individual was a danger to society and, sooner or later, someone was going to die.
But the question at hand was an AB 109 artifact – a straight prison term (which would be served locally) or a split sentence. Split sentencing occurs under Penal Code 1170(a)(5). When the sentence is split, part of the sentence is served in custody and part of the sentence is served outside of custody during a period of post-release mandatory supervision by the probation department.
Here is where we get into philosophy which seemingly is rarely articulated in our local courts. The DA’s office naturally and understandably believes that the best course of action is the strictest sentence – keep the person in custody to protect the public.
But Judge Rosenberg reasoned (it was his explanation of his ruling) that if they gave the defendant straight jail time, the defendant would be released and that would be it. He would not have any external supervision. And so, while Judge Rosenberg was sympathetic to the prosecutor’s concerns and stated that the individual’s prior record was poor, he believed that the best course of action was the split sentence where he would be under supervision by the probation department for a year and a half.
Tacit in that explanation was the belief that prison time (whether locally served or not) was not going to change this individual’s behavior. We need to have programs on the outside to be able to help actually correct the behavior.
—David M. Greenwald reporting
Prior to AB 109 he would have gone to prison and then been on parole supervision for a period of time where he could be violated and returned to prison for up to one year. I think the parole supervision time was three years. Now it sounds like the combined time of incarceration and supervision can only last three years when before it was six years. In my opinion this is a great example of how AB 109 has reduced public safety by reducing the tools available to remove a dangerous criminal from the community and supervise him upon release.
David,
Does the three years keep running and end on a specified date no matter how well he performs under supervision? For example if he starts drinking and avoids probation supervision what then if they cannot locate him?
On the bottom, I believe that would be a probation violation and that would either be a new offense or additional time.
David,
Does the “additional time” count as part of the three year sentence? I was advised that the three year split sentence cannot be extended and if they violated the supervision they could be put back in jail to finish all or part of the remaining three year sentence and that it could not tolled or extended. Not sure if this person was right. I am sure that there is a lawyer out there who will comment.
not my area of expertise, but i’ll try to find the answer.
Defendant A pleads guilty and and is sentenced to a supervised drug diversion program. Defendant B has seven prior DUI convictions and is given a split sentence. Does defendant B’s supervised release include a drug diversion program?
It is reasonable to assume that both jail time and drug diversion programs have failed to correct the illegal behaviors of defendant B. It is time to learn from past judicial experience in regard to this individual. He is not likely to change his behavior outside of jail regardless of court-imposed jail punishments and treatment programs.
A wise judge would sentence defendant B in a way that keeps this individual as far away and long away from a motor vehicle as possible. Defendant B should have received the longest possible jail sentence under law rather than making the same mistake eight times. Defendant B cannot drink and drive a motor vehicle in a jail cell.
the judge in this case reasoned that spending time in prison/ jail was not going to change behavior, therefore while a longer prison sentence might protect the public for a few extra months an immediate unsupervised release was not in the public’s best interest. length of time is not likely to change behavior, i would focus on improving programs.
By the same token, one can reason that substance abuse programs will not change this individual’s behavior. While drug treatment programs have proven useful I agree that they could use improvement.
there is a lot more that we can do than substance abuse programs. i would start with vorp and other restorative approaches that seem to hold promise in making the perpetrators understand better the consequence of their bad choices.
Is VORP active in Yolo County? I am curious about what effective programs Defendant B will actually undergo while serving his “supervised” release. Proposed programs are one thing. At the time of sentencing a judge must consider programs that are actually available to the prisoner.
“Tacit in that explanation was the belief that prison time (whether locally served or not) was not going to change this individual’s behavior.”
Tacit in the explanation for a preference of the split sentence for the 7 time DUI offender is the assumption that county supervision after he spends a year and a half in jail will be “effective”. Parole supervision is notoriously ineffective nationwide. What makes anyone think the supervision after a year and a half in jail will be “effective”? And what is the definition of “effective”?
i suppose you could try to ask judge rosenberg that question.
LOL
Great job reducing sentences for “minor” crimes. With 7 DUI’s under his belt, in only 18 months he will be able to get behind the wheel again drunk and maybe kill someone this time. Why not give him 15-20 straight years in State prison? I am more than willing to pay a little extra in taxes to spare several Yolo County residents their life or the life of a loved one. It is obvious that he is unable live in society without being a danger to others. Does anyone really think that “supervision” is going to do any good after losing his license, probation and previous jail time has done nothing?
other than the split sentence under ab 109, there’s been no reduction here in the sentencing. my guess is that the first six dui’s were done under the old scheme. so you’re assigning failure to the new system when the old one clearly did not work.
What do you bet the new system does not work with this guy either?
How is the new system of supervision any different than the old system? How is mandatory supervision by the probation department any different than when a person is on probation and supervised by the same probation department? I can only assume that both will have some sort of alcohol education programs. How many has this guy had up to this point? It looks like he was on probation at least six time prior to the most recent arrest. Why would Rosenberg think the 7th time is the charm?
To Sam: I’m with you. This guy is going to kill someone. Didn’t there used to be a law in CA that said if you got caught drinking and driving that you had your car taken away? I tried to research it, but came up empty. Is my memory wonky? And how about installing breathalyzers so that drunk drivers cannot start their cars? Something needs to be done to keep jerks like this off the roads, if the judges are not willing to throw them in prison.
Sam,
The rest of the enablers, I mean voters, don’t agree with you. Since almost every family had a drunk, thief, abuser or molester, their “family values” won’t allow them to think someone from their bloodline is a bad seed.
This guy probably did not have a license or a car, but a family who allowed him to get to a car. They should be tried as accessories when he finally kills someone.
David,
What else did he plead to? It sounds like there were a number of other crimes committed. I would also think it would be relevant if his drivers license was suspended at the time of the current offense.